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SOLUTIONS, NOT SCAPEGOATS:
ABATING SWEATSHOP CONDITIONS
FOR ALL LOW-WAGE WORKERS
AS A CENTERPIECE OF
IMMIGRATION REFORM
Rebecca Smith and Catherine Ruckelshaus*
I.
INTRODUCTION
Across the country, low-wage workers are all too frequently paid
less than the minimum wage, denied overtime pay, and retaliated
against for speaking up about their treatment. In particular, immigrant
workers in the United States work exceedingly hard, often in situations of wage exploitation, discrimination, and exposure to life-threatening dangers on the job. Because of their recent arrival in the United
States, undocumented immigrants can face especially staggering obstacles to obtaining even the basic necessities for survival, leaving
them vulnerable to exploitation by unscrupulous employers.
Protection of the labor rights of undocumented workers has not
been central to the national debate on immigration reform. Instead,
the major focus of discussion has been border security, and the tenor
of the debate has often demonized immigrant workers, with some
commentators making frequent references to an “illegal immigrant invasion.”1 To the extent that workers are discussed, the question has
* Rebecca Smith is the Coordinator of the Justice for Low-Wage and Immigrant
Workers Project, and Catherine Ruckelshaus is the Litigation Director at the National
Employment Law Project. We would like to thank our former colleague Amy
Sugimori, as well as Ana Avendano, Mary Bauer, Michael Dale, Marielena Hincapie,
Tyler Moran, and Art Read for their help and ideas as we have thought through the
recommendations outlined here.
1. See, e.g., Pre-Election Focus in Congress on National Security, USA TODAY,
Sept. 5, 2006, available at http://www.usatoday.com/news/washington/2006-09-05congress-returns_x.htm; Lisa Porteus, Illegal Worker Debate Heats Up,
FOXNEWS.COM, Nov. 30, 2005, http://www.foxnews.com/printer_friendly_story/0,
3566,176951,00.html; Rachel L. Swarns, House Votes to Toughen Mexico Border
Security, INT’L HERALD TRIB., Dec. 17, 2005, at 7; Carl Hulse & Rachel L. Swarns,
Senate Passes Bill on Building Border Fence, N.Y. TIMES, Sept. 30, 2006, at A10;
Lou Dobbs Tonight (CNN television broadcast Mar. 21, 2005), transcript available at
555
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often been whether undocumented workers currently in the country
will have a path to legalization and citizenship, or be relegated to a
guestworker program.2 Discussions of employment have centered on
enhanced employer sanctions that would require employers to verify
workers’ status through an electronic verification system.3
Rather than embarking on an expanded guestworker program
which repeats the mistakes of the past, or counting on electronic verification systems to be a “silver bullet” to deter unlawful hiring of
undocumented immigrants, Congress should consider a far more potent “employer sanction” in order to abate sweatshop conditions for all
workers. Immigration reform must mean that all workers in this country—regardless of immigration status—are covered by and able to
vindicate all labor and employment rights. Immigration reform should
be pursued in tandem with labor law reforms that ensure that lowwage workers have a voice on the job, an enforceable minimum wage,
and protection against unsafe working conditions. Such a focus would
protect and advance the labor rights of all working people, whether
United States- or foreign-born, and reduce the currently existing powerful incentives for employers to seek out and abuse undocumented
workers. In this area, Congress could learn much from the experiences of the states in raising, indexing, and enforcing their minimum
wages, and in addressing rampant misclassification of workers as
independent contractors.
As a corollary to guaranteeing minimum labor standards for all
workers, guestworker programs should not be the centerpiece of immigration reform. As discussed later in this article, these programs
have been fraught with abuse of U.S. workers and foreign workers
alike. Instead, before approving a vast new guestworker program,
Congress should review current programs and correct past mistakes.
http://transcripts.cnn.com/TRANSCRIPTS/0503/21/ldt.01.html; Mark K. Matthews,
Lawmaker Fights Immigrant ‘Invasion,’ STATELINE.ORG, Sept. 1, 2005, http://www.
stateline.org/live/ViewPage.action?siteNodeId=136&languageId=1&contentId=
51723. Perhaps the best clue to the range of the debate in the then Republican-controlled House is the list of titles of the field hearings held in the summer of 2006. See
EAGLE FORUM, HOUSE IMMIGRATION FIELD HEARINGS SCHEDULE (2006), http://www.
eagleforum.org/alert/2006/08-02-06.html (focusing on border security, the cost of illegal immigration, and guest-workers). See also Jonathan Weisman & Shailagh Murray, GOP Plans Hearings on Issue of Immigrants, WASH. POST, June 21, 2006, at A1.
2. See, e.g., Bill Ong Hing, Guest Workers Program With a Path to Legalization,
PERSPECTIVES ON IMMIGRATION, Apr. 2006, http://www.ailf.org/ipc/2006_april_perspective.shtml.
3. See EAGLE FORUM, HOUSE IMMIGRATION FIELD HEARING SCHEDULE (2006),
http://www.eagleforum.org/alert/2006/08-02-06.html (focusing on the hearing topic
for July 31, 2006).
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Two basic principles should guide its review: a guestworker program
should be designed to ensure that U.S. workers (including newly-legalized workers) get first crack at decent jobs at decent wage levels.
If U.S. workers are not available, the programs should ensure they
protect the basic human rights and labor rights of guestworkers themselves. The existing programs that center on low-wage temporary
workers—the H-2A and H-2B programs—have fallen far short of this
goal.
A comprehensive legalization program that allows currently undocumented workers to be full participants in civil and economic society is the most important piece of legislation on immigration and labor
that Congress could pass. Possessing legal status would allow workers to make claims for compensation for workplace injuries, challenge
unhealthful and substandard conditions, organize, or simply vote with
their feet. However, all low-wage workers would benefit from additional protection of and enforcement of their labor rights, and correction of the many abuses that have existed under current guestworker
programs.
This article analyzes the failures of law and policy that have left
many full-time workers in poverty, proposes an agenda for change for
both U.S. and immigrant workers, and notes the areas in which some
of the bills considered in the 109th Congress succeeded (and failed) in
considering these core labor principles.
II.
PROBLEM: LABOR RIGHTS NEGLECTED
A. The Collapsing Wage Floor
In 2004, 7.8 million individuals in America were classified as
“working poor,” spending at least twenty-seven weeks per year in the
labor force (working or looking for work), but still earning less than
the federal poverty threshold.4 Three in five of these workers were
employed full time, many of them in service industries, natural resources, and construction.5 The following table presents a snapshot of
low-wage occupations in the United States.
4. BUREAU OF LABOR STATISTICS, U.S. DEP’T OF LABOR, A PROFILE
WORKING POOR, 2004, at 1 (2006), http://www.bls.gov/cps/cpswp2004.pdf.
5. See id. at 1–3.
OF THE
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DISTRIBUTION OF WORK AMONG OCCUPATIONAL GROUPS BY LEVEL
OF WAGES, SELECTED YEARS FROM 1983 TO 2002
Percentage of Work Paid Low Hourly Wages
1983
Occupational Group
1992
Percentage of All
Work That Is Paid
Low Hourly Wages
Percentage of All
Work in Group
2002
Percent Rank Percent Rank Percent Rank
1983
1992
2002
Food Service
14.6
1
14.4
1
15.0
1
4.2
4.2
4.3
1983 1992 2002
70
70
69
Sales Workers,
Retail and Personal
Service
12.5
2
12.4
2
12.0
2
4.5
4.4
4.4
55
57
55
Other Administrative Support,
Including Clerical
7.0
4
7.7
3
8.1
3
7.4
8.6
8.4
19
18
19
Machine Operators
and Tenders,
Excluding Precision
7.4
3
6.7
4
4.5
5
6.1
4.8
3.4
24
28
26
Cleaning and Building Service
5.4
6
5.4
5
5.0
4
2.6
2.5
2.2
41
44
44
Farm Workers and
Related Occupations
5.4
5
5.0
6
4.2
7
1.8
1.7
1.5
60
60
55
Other Handlers,
Equipment Cleaners, Helpers, and
Laborers
3.8
9
3.8
7
3.9
8
2.2
2.0
1.9
34
39
42
Health Service
3.8
8
3.6
9
4.3
6
1.8
1.9
2.1
42
40
41
Personal Service
3.0
10
3.7
8
3.9
9
1.1
1.4
1.5
55
54
51
Motor Vehicle
Operators
2.8
13
3.5
10
3.4
10
3.3
3.5
3.5
17
20
19
Total
65.6
n.a.
66.2
n.a.
64.3
n.a. 34.9 34.9 33.2 n.a. n.a.
Source: Congressional Budget Office based on the Bureau of the Census’s Current Population Surveys.6
n.a.
Foreign-born workers form a large share of the working poor in
America: in 2002, 17.9 million out of a total of 125.3 million workers
in the U.S. were foreign-born, but foreign-born workers made up 8.6
million out of a total of 43.1 million low-wage workers (defined as
making less than 200% of the state prevailing minimum wage).7 Twothirds of the undocumented workforce, or about four million workers,
are low-wage workers making less than twice the minimum wage.8
Immigrant workers represent 44% of low-wage employees in private
households, 44% of agricultural workers, and 24% of service
workers.9
6. CONG. BUDGET OFFICE, CHANGES IN LOW-WAGE LABOR MARKETS BETWEEN
1979 & 2005, at 17 (2006), available at http://www.cbo.gov/ftpdocs/76xx/doc7693/
12-04-LaborForce.pdf.
7. See RANDY CAPPS ET AL., A PROFILE OF THE LOW-WAGE IMMIGRANT
WORKFORCE 2 (Urban Inst. Immigrant Families and Workers Facts and Perspectives,
Brief No. 4, 2003), available at http://www.urban.org/publications/310880.html.
8. See JEFFREY S. PASSEL ET AL., UNDOCUMENTED IMMIGRANTS: FACTS AND
FIGURES (2004), available at http://www.urban.org/url.cfm?ID=1000587&renderfor
print=1.
9. See CAPPS ET AL., supra note 7, at 7.
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The federal minimum wage of $5.15 per hour (about $10,700 per
year for a full-time, full-year worker) is crushingly low. Over half of
the states have partly filled in the gap with state-level increases, including six new states—Arizona, Colorado, Missouri, Montana, Nevada, and Ohio—that both raised their state minimum wage by ballot
initiative in the November 2006 election and tied further increases to
the cost of living.10 To its credit, the incoming Congress indicated
early that one of its top priorities for the 110th Congress was to raise
the minimum wage. After a lengthy stall in the Senate, a modest increase—from $5.15 to $7.25 over two years—was included as part of
the funding for the war in Iraq.11
But merely increasing the minimum wage is less than half the
battle. For many workers, there is a gap between coverage by minimum wage laws and compliance with minimum wage laws. Many
employers of low-wage workers, especially in industries in which immigrant workers are overrepresented, are also frequent violators of
wage and hour laws. Recent government studies find as many as 50 to
100% of garment, nursing home, and poultry employers in violation of
the basic minimum wage and overtime protections of the Fair Labor
Standards Act.12 The Bureau of Labor Statistics found that 2.2 million
10. Editorial, The Minimum They Should Do, S.F. CHRON., Nov. 30, 2006, at B8;
EMPLOYMENT STANDARDS ADMIN., WAGE AND HOUR DIV., U.S. DEP’T OF LABOR,
MINIMUM WAGE LAWS IN THE STATES—Jan. 1, 2007, available at http://www.dol.
gov/esa/minwage/america.htm; LIANA FOX, STATE MINIMUM WAGES ON THE BALLOTS (2006), http://www.epi.org/content.cfm/webfeatures_snapshots_20061025.
11. See Fair Minimum Wage Act of 2007, Pub. L. No. 110-028 §§ 8101–04. 121
Stat. 188–89 (2007). See also Editorial, The Minimum They Should Do, S.F. CHRON.,
Nov. 30, 2006, at B8; Press Release, Senator Edward Kennedy, Kennedy, Schumer,
Clinton Join Leaders and Activists to Celebrate State Minimum Wage Wins and Fight
for Federal Increase (Nov. 16, 2006), http://kennedy.senate.gov/newsroom/press_release.cfm?id=b2191140-999e-4224-b96d-d183b7e26592. The Senate’s consideration
of the bill was stalled by a long series of amendments that would privilege small
business, grant tax breaks to businesses that outsource workers to professional employee organizations, and incorporate some of the employer sanctions provisions included in bills pending in the 109th Congress.
12. See U.S. DEP’T OF LABOR, YEAR 2000 POULTRY PROCESSING COMPLIANCE REPORT 3 (2000), (indicating 100% noncompliance among the investigated poultry
processing plants); Bureau of Nat’l Affairs, U.S. Dep’t of Labor, Close to Half of
Garment Contractors Violating Fair Labor Standards Act, 1996 DAILY LABOR REPORT 87 (indicating that about 47% of garment contractors and manufacturers were
found to be in violation of the Act); DAVID WEIL, COMPLIANCE WITH THE MINIMUM
WAGE: CAN GOVERNMENT MAKE A DIFFERENCE? 11 (2004), http://www.soc.duke.
edu/sloan_2004/Papers/Weil_Minimum%20Wage%20paper_May04.pdf (indicating
that 54% of garment contractors surveyed were not in compliance); U.S. DEP’T OF
LABOR, COMPLIANCE HIGHLIGHTS: 1999 SALAD BOWL REPORT 1, 3 (1999) (on file
with NYU Journal of Legislation and Public Policy) (indicating that compliance levels
were “unacceptably low” in agriculture industries specializing in cucumbers, lettuce,
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hourly workers were paid at or below the federal minimum wage in
2002.13
Nor has enforcement of the wage and hour rights of low-wage
workers kept up with the frequency of violations. In the face of
wholesale violations in particular industries, resources dedicated to enforcement have been falling for many years. For example, from
1975–2004, the budget for U.S. Wage and Hour Division (WHD) investigators, tasked with investigation and enforcement of the nation’s
minimum wage laws, decreased by 14% (to a total of 788 individuals
nationwide) and completed enforcement actions decreased by 36%,
while the number of workers covered by statutes enforced by the
WHD grew by 55%.14 In fiscal year (FY) 2004, there was approximately one federal Wage and Hour investigator for every 110,000
workers covered by Fair Labor Standards Act (FLSA).15 By 2007, the
U.S. Department of Labor’s (DOL) budget dedicated to enforcing
wage and hour laws will be 6.1% less in real dollars than before President Bush took office.16
For certain workers, the DOL’s WHD’s processes make it difficult for workers to register their complaints. In 2004, 78% of all
WHD enforcement was complaint-driven, a system that means that
government does not hear from workers in the industries that have the
most wage and hour violations.17 The U.S. General Accounting Office (now called the “Government Accountability Office” or GAO)
observed in a September 2002 report that workers do not complain
due to language, education and skill levels, fear of retribution, or, for
and onions); U.S. DEP’T OF LABOR, EMPLOYMENT STANDARDS ADMINISTRATION,
NURSING HOME 2000 COMPLIANCE SURVEY FACT SHEET, http://www.dol.gov/esa/
healthcare/surveys/nursing2000.htm (indicating that 60% of nursing homes surveyed
were not in compliance). In addition, a 2005 nongovernmental survey of hundreds of
New York City restaurants found that more than half were violating overtime or minimum wage laws. See RESTAURANT OPPORTUNITIES CENTER OF NEW YORK AND THE
NEW YORK CITY RESTAURANT INDUSTRY COALITION, BEHIND THE KITCHEN DOOR:
PERVASIVE INEQUALITY IN NEW YORK CITY’S THRIVING RESTAURANT INDUSTRY, EXECUTIVE SUMMARY 3 (2005), available at http://www.rocny.org/documents/ROC-NY
ExecSummary.pdf.
13. See Bureau of Nat’l Affairs, Workers are Paid at or Below Minimum Wage in
2002, BLS Says, 173 LAB.REL.RPTR. 16, 16 (2003).
14. Annette Bernhardt & Siobhán McGrath, Trends in Wage and Hour Enforcement
by the U.S. Department of Labor, 1975-2004, (Brennan Ctr. for Justice at NYU Sch.
of Law, Econ. Policy Brief No. 3, 2003).
15. There are nearly eighty-eight million people covered by FLSA. Id. at 2.
16. Judd Legum et al., Labor—Bush Priorities Hurt Workers, Help Employers, The
Progress Report (Ctr. for Am. Progress Action Fund, Wash., D.C., June 14, 2006).
17. David Weil & Amanda Pyles, Why Complain? Complaints, Compliance, and
the Problem of Enforcement in the U.S. Workplace, 27 COMP. LAB. L. & POL’Y J. 59,
59, 61, 72 (2006).
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some, fear of deportation, and because government agencies do not
find out about violations, they are unable to do their job with respect
to day laborers.18
For other workers, the federal minimum wage and overtime laws
simply do not apply. Workers left out of minimum wage protection
include home health care workers subject to FLSA’s “companionship
exemption,” who are not covered by minimum wage at all.19 Agricultural workers and live-in domestic workers are not covered by overtime rules.20 Tipped employees’ wages can be reduced by as much as
half, to $2.13 per hour, due to tips they supposedly receive.21 As a
result of the DOL’s regulatory changes to the administrative overtime
exemptions under FLSA, six million workers may have lost their right
to overtime pay since 2004.22
For still other workers, employers have opted to self-exempt
from wage and hour laws by passing off their workplace responsibilities to subcontractors23 or misclassifying workers as independent contractors.24 In general, independent contractors constitute a small
proportion of the American workforce, hiring out their special skills to
various companies.25 Because independent contractors are thought of
as being in business on their own, employers are not required to pay a
variety of payroll taxes (including social security and unemployment
insurance).26 These workers are not protected under employment
18. U.S. GEN. ACCOUNTING OFFICE, GAO 02-925, WORKER PROTECTION: LABOR’S
EFFORTS TO ENFORCE PROTECTIONS FOR DAY LABORERS COULD BENEFIT FROM BETTER DATA AND GUIDANCE 14 (2002).
19. See 29 U.S.C. § 213(a)(15) (2000).
20. 29 U.S.C. § 213(b)(12) (2000); 29 U.S.C. § 213(b)(21) (2000).
21. 29 U.S.C. § 203(m) (2000). See also U.S. DEP’T OF LABOR, WAGE & HOUR
DIV., FACT SHEET #29: FAIR LABOR STANDARDS ACT AMENDMENTS OF 1996, http://
www.dol.gov/esa/regs/compliance/whd/whdfs29.htm.
22. ROSS EISENBREY, LONGER HOURS, LESS PAY 1 (Econ. Policy Inst., Briefing
Paper No. 152, 2004), available at http://www.epinet.org/content.cfm/briefingpapers_
bp152.
23. See NAT’L EMPLOYMENT LAW PROJECT, SUBCONTRACTED WORKERS: THE OUTSOURCING OF RIGHTS AND RESPONSIBILITIES 1 (2004), available at http://www.nelp.
org/docUploads/subcontracted%20work%20policy%20update%5F072704%5F0654
05%2Epdf.
24. See NAT’L EMPLOYMENT LAW PROJECT, 1099’D: MISCLASSIFICATION OF EMPLOYEES AS “INDEPENDENT CONTRACTORS” 1 (2005), available at http://www.nelp.
org/docUploads/independent%20contractor%20misclassification%2Epdf.
25. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-06-656, EMPLOYMENT ARRANGEMENTS: IMPROVED OUTREACH COULD HELP ENSURE PROPER WORKER CLASSIFICATION
11 (July 2006) (finding that “independent contractors” are 7.4% of today’s
workforce). Some number of those listed by the GAO as “independent contractors”
are in fact misclassified employees, making the overall percentage even smaller.
26. IRS, PUBL’N NO. 15-A, EMPLOYER’S SUPPLEMENTAL TAX GUIDE 6 (2007); IRS,
PUBL’N NO. 15, (CIRCULAR E), EMPLOYER’S TAX GUIDE 7 (2007).
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laws.27 In an era of non-enforcement, these advantages often lead employers to misclassify employees (whose work is controlled by their
employer) as independent contractors in order to cut their labor
costs.28
In 2000, the DOL commissioned a study of employer tax evasion
in the unemployment insurance system.29 That study found eighty
thousand workers lost benefits annually because of employer misclassification of workers as independent contractors.30 Of the nine states
audited in the study, the percentage of employers that had misclassified some of their workforce ranged from a low of 9.15% in New
Jersey to a high of 42% in Connecticut.31 DOL audits of unemployment systems generally identify a large percentage, about 42% of employers, who are required to correct their classifications of workers as
independent contractors rather than employees.32 In 2004, the DOL
audited only 1.7% of employers, but those audits resulted in a 5%
increase in wages unreported to state agencies.33
These violations have an impact on individual workers, who find
it difficult or impossible to recover from their employers for wage and
hour violations, or to receive unemployment or workers’ compensation benefits.34 The employer-backed Employer Policy Foundation
estimated that workers would receive an additional $19 billion annually if employers obeyed workplace laws.35 Violations of the law also
have an impact on federal revenue: the GAO estimated that misclassification of employees as independent contractors alone reduces federal income tax up to $1.6 billion in 1984.36 Coopers & Lybrand (now
PriceWaterhouse Coopers) estimated in 1994 that proper classification
of workers would increase tax receipts by $34.7 billion over the period
from 1996 to 2004.37 A recent analysis of workers’ compensation and
27. U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 24, at 7–8.
28. See NAT’L EMPLOYMENT LAW PROJECT, 1099’D, supra note 23, at 1–2.
29. PLANMATICS, INC., INDEPENDENT CONTRACTORS: PREVALENCE AND IMPLICATIONS FOR UNEMPLOYMENT INSURANCE PROGRAMS (2000), available at http://wdr.
doleta.gov/owsdrr/00-5/.
30. Id. at iv.
31. Id. at 56.
32. See U.S. DEP’T OF LABOR, UI PERFORMS CY 2004 ANNUAL REPORT 38 (2006),
available at http://www.ows.doleta.gov/unemploy/uipar.asp.
33. Id. at 38–39.
34. See NAT’L EMPLOYMENT LAW PROJECT, supra note 24, at 1.
35. See Craig Becker, A Good Job for Everyone, LEGAL TIMES, Sept. 6, 2004.
36. U.S. GEN. ACCOUNTING OFFICE, GAO/GGD-89-107, TAX ADMINISTRATION: INFORMATION RETURNS CAN BE USED TO IDENTIFY EMPLOYERS WHO MISCLASSIFY EMPLOYEES 1 (1989).
37. COOPERS & LYBRAND, PROJECTION OF THE LOSS IN FEDERAL TAX REVENUES
DUE TO MISCLASSIFICATION OF WORKERS 26 (1994).
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unemployment compensation data in New York found that noncompliance with payroll tax laws means as many as 20% of workers’ compensation premiums—$500 million to $1 billion—go unpaid each
year.38
B. Risky Business
In 2005, over 5700 workers were killed on the job in the United
States, and nonfatal workplace injuries and illnesses occurred at a rate
of 4.6 cases per 100.39 The trends are particularly bad for immigrant
workers, who hold the most dangerous jobs.
Among at-risk workers, the DOL’s Bureau of Labor Statistics
(BLS) found in 2005 that the highest work-related fatality rates were
in the construction, transport and warehousing, and agriculture sectors.40 Immigrant workers are employed in these and other high-risk
sectors, and their rates of injury and death are alarmingly high.41 Fatal
injuries to immigrant Latino workers increased 11% from 2003 to
2004, with a fatality rate among Latino workers 19% higher than the
fatal injury rate for all U.S. workers.42 In 2005, deaths among Latino
workers reached an all-time high at 917, and workplace fatalities to
foreign-born Latino workers rose to 625, up from 596 in 2004.43
38. FISCAL POLICY INST., NEW YORK STATE WORKERS’ COMPENSATION: HOW BIG
IS THE COVERAGE SHORTFALL? 2 (2007).
39. See BUREAU OF LABOR STATISTICS, U.S. DEP’T OF LABOR, CENSUS OF FATAL
OCCUPATIONAL INJURIES SUMMARY, 2005, available at http://www.bls.gov/news.release/cfoi.nr0.htm; BUREAU OF LABOR STATISTICS, U.S. DEP’T OF LABOR, WORKPLACE INJURY AND ILLNESS SUMMARY, available at http://www.bls.gov/news.release/
osh.nr0.htm. These numbers do not, of course, take into account injuries that go unreported. Underreporting is a serious issue for many workers who fail to report injuries
either because of a fear of retaliation or because of economic incentives that employers offer them. Lenore S. Azaroff et. al., Occupational Injury and Illness Surveillance: Conceptual Filters Explain Underreporting, 92 AM. J. PUB. HEALTH 1421,
1421–22 (2002).
40. See BUREAU OF LABOR STATISTICS, U.S. DEP’T OF LABOR, NAT’L CENSUS OF
FATAL OCCUPATIONAL INJURIES IN 2005, at 3 (2006), available at http://www.bls.gov/
news.release/pdf/cfoi.pdf.
41. See OCCUPATIONAL SAFETY AND HEALTH ADMIN., U.S. DEP’T OF LABOR,
OSHA STRATEGIC MANAGEMENT PLAN 2003–2008, at 6, available at http://www.
osha.gov/StratPlanPublic/strategicmanagementplan-final.html (“Immigrant and ‘hardto-reach’ workers and employers are also becoming more prevalent. Many immigrants are less literate, unable to read English instructions, and work in some of the
most inherently dangerous jobs.”).
42. Scott Richardson, Fatal Work Injuries Among Foreign-Born Hispanic Workers,
MONTHLY LABOR REVIEW, Oct. 2005, at 63, 65–66, available at http://www.bls.gov/
opub/mlr/2005/10/ressum.pdf.
43. BUREAU OF LABOR STATISTICS, supra note 40, at 5.
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These injuries and accidents come at a staggering cost. The nation’s largest workers’ compensation insurance company, Liberty Mutual Insurance, collects data on the causes and costs of compensable
work injuries and illnesses.44 Its 2005 Workplace Safety Index calculated that workplace injuries cost U.S. employers $50.3 billion in direct costs, and between $150.0 billion and $301.1 billion annually in
indirect costs.45
The Occupational Safety and Health Administration (OSHA) has
too few resources to adequately protect worker safety and health. At
current staffing levels, it would take the OSHA 117 years to inspect
the workplaces under its jurisdiction.46 In the meantime, penalties for
serious violations of the Occupational Safety and Health Act (OSH
Act), those that pose a substantial probability of death or serious physical harm, carry an average penalty of only $883.47 According to a
New York Times’ analysis of OSHA data, “companies whose willful
acts kill workers face lighter sanctions than those who deliberately
break environmental or financial laws.”48 But in recent years,
OSHA’s budget has favored voluntary and educational efforts over
enforcement involving civil and criminal penalties.49
Just as is the case with the protection of the FLSA, not all workers are covered under OSHA. For example, domestic workers are excluded from OSHA, and Congress prohibits OSHA from inspecting
farms with ten or fewer employees.50 For employees in industries excluded from OSHA’s protection, workplace health and safety is completely dependent on whether employers know how to address risks on
the job and have to will to protect them, since no government agency
has the responsibility to enforce their rights to a healthful workplace.
44. AFL-CIO, DEATH ON THE JOB: THE TOLL OF NEGLECT 6 (2006), available at
www.aflcio.org/issues/safety/memorial/upload/death_on_the_job_2005.pdf.
45. Id. at 1.
46. Id. at 6.
47. Id. at 7.
48. Id. at 8 (citing David Barstow, When Workers Die: U.S. Rarely Seeks Charges
for Deaths in Workplace, N.Y. TIMES, Dec. 22, 2003).
49. Id. at 15.
50. 29 C.F.R. 1975.6 (2006). A yearly appropriations rider prohibits OSHA from
inspecting these farms. See, e.g., OCCUPATIONAL SAFETY AND HEALTH ADMIN., U.S.
DEP’T OF LABOR, STANDARD INTERPRETATIONS: FARMING APPROPRIATIONS RIDER
(July 22, 1992), available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=20764, and U.S. Depts. of Labor, Health
and Human Services, and Education, and Related Agencies Appropriations Act, H.R.
2264, 105th Cong. (1998).
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C. Targets for Abuse
If the worker safety and non-payment of wages picture is grim
for all workers, it is especially so for undocumented workers. These
workers are vulnerable to workplace abuse, discrimination, and exploitation, just like other low-wage workers. They face, as well, very
real daily fear of being turned over to immigration authorities, making
them even less likely to raise complaints about workplace violations.51
In a report on wage and hour protection, health and safety protection, and day laborers, the GAO stated that “immigrants to the United
States, especially newer ones, are more willing to accept lower wages
and substandard work that offers few benefits or protections, which
makes them attractive to unscrupulous employers who may exploit
them as a cheap source of labor.”52 This means that workplaces with
immigrants are more vulnerable to abuses without redress.
Everyone from judges and commentators to government investigators acknowledges these vulnerabilities.53 Meanwhile, these workers’ labor rights have deteriorated. Their ability to exercise freedom of
association and to bargain over terms and conditions of employment
was severely undermined by the Supreme Court’s decision in Hoffman
Plastic Compounds, Inc. v. NLRB, which held that an undocumented
worker fired in “crude and obvious” violation of the National Labor
Relations Act (NLRA) is nonetheless ineligible for a backpay award
under the NLRA.54 Following Hoffman, undocumented workers are
deprived of the most effective remedy—and the only monetary remedy—available in the NLRA scheme. Backpay is the only out-ofpocket cost that an employer incurs by illegally firing a worker, since
the National Labor Relations Board (NLRB) has no authority to award
punitive damages or any other remedy that would punish employers.55
Since there is no effective remedy for retaliation after Hoffman, undocumented workers are less likely to take the risk of job loss that
often comes with attempts to organize a union.
Worse still, since Hoffman, state supreme courts in Pennsylvania,
New Hampshire, and Michigan have limited undocumented workers’
access to compensation for time lost from work due to work injuries,
51. See, e.g., Rivera v. NIBCO, 364 F.3d 1057, 1065 (9th Cir. 2004). For more
stories of immigrant workers subject to workplace abuse and threats of retaliation, see
ANAIS SENSIBA & SHAUN YAVROM, EMPLOYMENT RIGHTS ARE HUMAN RIGHTS
(2005), available at http://www.nelp.org/docUploads/workersrights1205%2Epdf.
52. U.S. Gen. Accounting Office, supra note 18, at 11.
53. See, e.g., Rivera, 364 F.3d at 1065; U.S. Gen. Accounting Office, supra note
18, at 14.
54. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 151–53 (2002).
55. Republic Steel Corp. v. NLRB, 311 U.S. 7, 10–12 (1940).
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and New York has said that undocumented status can be a factor in
determining damages.56 The highest state court in New Jersey has
allowed a decision to stand that women who are victims of sex discrimination are not entitled to remedies for unlawful termination.57
Recently, in Kansas, workers injured on the job who file claims for
workers’ compensation are being prosecuted criminally, and then deported for having used invalid Social Security Numbers to get jobs.58
While section 11(c) of the OSH Act protects workers from retaliation
if they seek safe and healthful conditions on the job,59 there is a lack
of clarity as to how OSHA will approach 11(c) cases and back pay
remedies as a result of the Hoffman decision.
Because the low-wage workforce includes such a high percentage
of immigrant workers, and because all low-wage workers—but most
particularly, low-wage undocumented workers—are so vulnerable to
unredressed workplace violations, the labor rights not only of immigrant workers, but of all low-wage workers, are inextricably tied to
immigration reform. This means that for immigration reform to succeed, it must be accompanied by significantly enhanced enforcement
of labor rights of all workers.
56. See Sanchez v. Eagle Alloy Inc., 658 N.W.2d 510, 516, 521 (Mich. Ct. App.
2003) (finding that undocumented workers are covered by Michigan workers’ compensation law and are entitled to full medical benefits if injured on the job but that
their right to wage-loss benefits ends at the time that the employer “discovers” they
are unauthorized to work); Reinforced Earth Co. v. Workers’ Comp. Appeal Board
(Astudillo), 810 A.2d 99, 108–09 (Pa. 2002) (holding that although undocumented
worker is entitled to medical benefits after experiencing a workplace injury, illegal
immigration status might justify terminating workers’ compensation benefits for temporary total disability); Rosa v. Partners in Progress, Inc., 868 A.2d 994, 1000–02
(N.H. 2005) (holding that undocumented worker asserting tort claim for workplace
injury could only recover lost wages at the wage level of his country of origin unless
he could prove his employer knew about his irregular immigration status at the time of
hiring); Balbuena v. IDR Realty LLC, 6 N.Y.3d 338, 362 (2006) (holding that immigration status can be a factor to reduce benefits received by an undocumented
worker’s family in a wrongful workplace death claim).
57. Crespo v. Evergo Corp., 841 A.2d 471, 477 (N.J. Super. Ct. App. Div. 2004),
cert. denied, 849 A.2d 184 (N.J. 2004) (holding that an undocumented worker suing
for discriminatory termination could not recover either economic or non-economic
damages absent egregious circumstances during the period of employment such as
extreme sexual harassment).
58. See Did Injury Claim Prompt Cessna Raid?, 9 IMMIGRATION NEWS BRIEFS 21
(2006); see also BRENT I. ANDERSON, THE PERILS OF U.S. EMPLOYMENT FOR FALSELY
DOCUMENTED WORKERS (AND WHATEVER YOU DO, DON’T FILE A WORK COMP CLAIM),
paper submitted to American Bar Association, Labor and Employment Law Workers’
Compensation Committee Midwinter Meeting (March 2006) (on file with New York
University Journal of Legislation and Public Policy).
59. 29 U.S.C.A. § 660(c) (2000).
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III.
CURRENT IMMIGRATION REFORM PROPOSALS AND LABOR
STANDARDS: FALSE SOLUTIONS AND
FAILED POLICIES
In the 109th Congress, little attention was paid to broad, effective
protection of the labor rights of low-wage workers. Most of the public
debate, with respect to immigrant workers in particular, focused on
two methods for reducing the hiring of undocumented workers:
stepped up sanctions against employers who hire undocumented workers, including more workplace raids; and a guestworker policy that
would replace the existing undocumented population with documented, temporary guestworkers.60 Before embarking on expanded
employer sanctions or guestworker programs, it is important to review
the history of the existing programs.
A. False Solution: Broadening an Employer Sanctions Regime that
has Become Sanctions Against Workers
Passed in 1986, the Immigration Reform and Control Act (IRCA)
established an amnesty program for illegal immigrants who had already worked and lived in the United States.61 The law also made it
unlawful for any employer to knowingly hire a worker who is not
authorized to work in the United States (“employer sanctions”),62
under the theory that low prospects for employment would reduce illegal immigration.
IRCA’s employer sanctions regime included an “employment
verification system” intended to deny employment to aliens who are
not lawfully present in the United States, or who are not lawfully authorized to work in the United States.63 IRCA mandates that employers verify the identity and eligibility of all new hires by examining
specified documents before they begin work.64
Under IRCA, if an immigrant job applicant is unable to present
the required documentation, she cannot legally be hired.65 IRCA also
makes it a crime for an unauthorized alien to present fraudulent documents to his or her employer.66 Unauthorized immigrants who use or
attempt to use fraudulent documents to subvert the employer verifica60.
61.
62.
63.
64.
65.
66.
See supra text accompanying notes 1–3.
8 U.S.C. § 1255a (1994).
8 U.S.C. § 1324a(a) (1994).
8 U.S.C. § 1324a(b) (1994).
8 U.S.C. § 1324a(b)(1)(B) (1994).
8 U.S.C. § 1324a(b)(1)(A) (1994).
8 U.S.C. § 1324c(a) (1994).
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tion system established by IRCA are subject to fines and criminal
prosecution.67
1. Discrimination Under Current Immigration Law
The language of the verification requirements provides employers with a “gaping loophole” that they exploit by hiring immigrants
whom they know have presented fraudulent documents.68 Under
IRCA, employers are only required to accept documents that appear
on their face to be genuine.69 This has meant that an employer can
ignore documents it suspects are invalid, allow the worker to use documents that belong to another person, or even take part in procuring
documents for the worker.70 “In effect, employers who are willing to
comply just enough to avoid appearing to disregard the law totally, but
who in fact continue to rely on unauthorized labor, are insulated from
the law’s sanctions provisions.”71
At the same time, Congress was concerned that the creation of
employer sanctions under IRCA created a risk that employers would
overreact and refuse to hire foreigners, discriminating against individuals who “looked or sounded foreign.”72 To counterbalance this anticipated discrimination, Congress also created a prohibition against
unfair immigration-related employment practices, such as discrimination based on national origin or citizenship status.73 However, immigrants without work authorization are excluded from the protection of
the Act, which protects against discrimination based on citizenship
and national origin in employment. In fact, the law protects only
workers who are lawful permanent residents and intending to become
citizens.74 Moreover, the law punishes only employers who misuse
immigration status and intend to discriminate.75 An undocumented
67. Id.; 18 U.S.C. § 1546(b) (2000).
68. William J. Murphy, Note, Immigration Reform without Control: The Need for
an Integrated Immigration-Labor Policy, 17 SUFFOLK TRANSNAT’L L. REV. 165,
177–78 (1994).
69. 8 U.S.C. § 1324a(b)(1)(A) (1994).
70. Linda S. Bosniak, Exclusion and Membership: The Dual Identity of the Undocumented Worker Under United States Law, 1988 WIS. L. REV. 955, 1016–17.
71. Id. at 1017.
72. Natalie Prescott, Immigration Reform Fuels Employment Discrimination, 55
DRAKE L. REV. 101, 105 (2006).
73. 8 U.S.C. § 1324b (1994).
74. 8 U.S.C. § 1324b(a)(3) (1994).
75. Robison Fruit Ranch, Inc. v. United States, 147 F.3d 798, 801–02 (9th Cir.
1998). The statute was amended in 1996 to impose a burden upon employees to show
that a request for additional documents or a refusal of legally acceptable documents
was “made for the purpose or with the intent of discrimination,” ostensibly in order to
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worker whose employer turns her in to immigration authorities after
she files a workers’ compensation claim is frequently unprotected, as
are employees whose employer suddenly wants to investigate their immigration status after they file a complaint about workplace
conditions.76
IRCA’s anti-discrimination provisions have not stopped discrimination against authorized foreign-born workers and people of color.
In 1990, the GAO issued a report in which it determined that federal
employer sanctions had resulted in a widespread pattern of discrimination by employers.77 For example, the GAO found higher rates of
discriminatory verification practices “in areas having high Hispanic
and Asian populations.”78 In the course of developing the report, the
GAO conducted a hiring audit of a sample of employers using
matched Anglo and Latino testers. According to the report, the results
of the audit “showed that the Hispanic testers were three times as
likely to encounter unfavorable treatment when applying for jobs as
were closely matched Anglos.”79 Similarly, the U.S. Commission on
Civil Rights stated in a report that “we find clear and disturbing indications that IRCA has caused at least a ‘pattern of discrimination,’ if
not widespread discrimination.”80
While some may believe that computerized electronic verification systems will lead to greater accuracy and less discrimination, that
has not been the experience with pilot programs for electronic verification. On September 30, 1996, President Clinton signed the Illegal
Immigrant Reform and Immigrant Responsibility Act of 1996
(IIRIRA).81 Among its provisions, IIRIRA required the Immigration
excuse employers who are simply trying to comply with the law. 8 U.S.C.
§ 1324b(a)(6) (2000).
76. In Rivera v. NIBCO, 364 F.3d 1057, 1073–74 (9th Cir. 2004), the Ninth Circuit
provided some measure of protection to some workers who file discrimination complaints by refusing to allow the employer to ask questions about immigration status in
formal discovery.
77. U.S. GEN. ACCOUNTING OFFICE, GAO/GGD-90-62, IMMIGRATION REFORM: EMPLOYER SANCTIONS AND THE QUESTION OF DISCRIMINATION 4 (1990).
78. Id. at 6.
79. Id. at 47. See also Cynthia Bansak & Steven Raphael, Immigration Reform and
the Earnings of Latino Workers: Do Employer Sanctions Cause Discrimination?, 54
INDUS. & LAB. REL. REV. 275, 277 (2001) (“Results from the employer survey indicate that a substantial minority of employers engage in illegal discriminatory practices
such as only examining the documents of applicants who are foreign-looking, or not
hiring applicants with a foreign appearance . . . .”).
80. U.S. COMM’N ON CIVIL RIGHTS, THE IMMIGRATION REFORM AND CONTROL
ACT: ASSESSING THE EVALUATION PROCESS iii, 20 (1989).
81. Illegal Immigrant Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, 110 Stat. 3009-546 (1996).
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and Naturalization Service (INS, now the Department of Homeland
Security, or DHS) and the Social Security Administration (SSA) to
test and evaluate pilot programs for electronic verification of employees’ work authorization.82 The pilot program currently in existence is
known as the “Basic Pilot Program.”83 The 1996 law also required an
independent evaluation of the program, which was published in
2002.84 The conclusions of the outside evaluating firms were clear.
The Basic Pilot involved pervasive problems in both design and implementation—inaccuracies in the databases used, human error, and
employer misuse and abuse—that led to the recommendation that the
Pilot not be expanded.85 This recommendation was unequivocal; the
evaluators concluded that some of the problems they identified “could
become insurmountable if the program were to be expanded dramatically in scope.”86
In 2003, Congress enacted the Basic Pilot Program Extension and
Expansion Act of 2003, requiring the Secretary of Homeland Security
to expand the (still-voluntary) Basic Pilot to all fifty states and to submit a report on the program to Congress by June 2004.87 In its report
to Congress, DHS identified problems in the SSA and DHS databases
as contributing to the problem of excessive rates of tentative non-confirmations for foreign-born workers.88 While it reports improvements
in accuracy, the rates of confirmation for foreign-born work-authorized people are still very low. DHS reports an improvement in SSA
confirmation rates for foreign-born non-citizens from 37.2% to only
48.8%.89 This means that over half of all foreign-born non-citizens,
when verified electronically, receive initial non-confirmations. The
rate for foreign-born citizens improved from 83.6% to 88.6%.90 In
other words, more than one out of every ten foreign-born U.S. citizens, when electronically verified, receives an initial nonconfirmation.
A serious consequence of the problems identified by the evaluators was discrimination and violations of employees’ rights: “[t]he
82. Id. §§ 401–405.
83. Id. § 403.
84. WESTAT AND TEMPLE UNIV. INST. FOR SURVEY RESEARCH, FINDINGS OF THE
BASIC PILOT PROGRAM EVALUATION, SUMMARY AND DETAILED REPORTS (2002)
[hereinafter SUMMARY REPORT and DETAILED REPORT].
85. SUMMARY REPORT, supra note 84, at 41–42.
86. Id. at 41.
87. DEP’T OF HOMELAND SEC., REPORT TO CONGRESS ON THE BASIC PILOT PROGRAM 1 (2004).
88. Id. at 3.
89. Id. at 4–5.
90. Id.
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current Basic Pilot system jeopardizes employee rights as defined by
fair information standards and does not solve the discrimination problem widely believed to have been created by employer sanctions.”91
Moreover, the evaluators identified as a possible consequence of the
program “growth in the underground economy, which could lead to
worker exploitation and related problems.”92
One of the causes of this discrimination identified by the evaluators was employer misuse of the system. Forms of employer abuse
included: engaging in pre-screening of employees that denies not only
some jobs, but also the opportunity to resolve inaccuracies in federal
records;93 taking adverse action against employees receiving tentative
non-confirmation of their immigration status, including not allowing
workers to continue working while they straightened out their records,
cutting pay for those with tentative non-confirmations, or delaying
training;94 failing to inform employees of their rights;95 failing to
maintain employees’ privacy;96 and failing to safeguard pilot system
information—for example, allowing others to access the computers or
system.97
2. The Growth of an Underground Economy
Employer sanctions have also contributed to expansion of an “underground economy” in which employers seek out and hire undocumented workers, expecting them to work for lower wages and working
conditions and to remain silent about violations of workplace rights
out of fear of losing their job or being reported to immigration authorities. Since undocumented workers do not have access to unemployment insurance or other social safety net benefits, they are forced to
work at the best job possible as soon as possible.98 Some employers
often actually use the “employer sanctions” scheme as a means to
threaten undocumented workers with possible deportation if they do
complain about workplace conditions or try to enforce rights. For example, reported cases include the following: a worker who was injured on the job and then turned into immigration by his employer.
91. DETAILED REPORT, supra note 84, at 199.
92. Id. at 196.
93. SUMMARY REPORT, supra note 84, at 19.
94. Id.
95. Id. at 20.
96. Id. at 19.
97. Id.
98. PIA ORRENIUS & MADELINE ZAVODNY, DID 9/11 WORSEN THE JOB PROSPECTS
OF HISPANIC IMMIGRANTS? 5 (Fed. Reserve Bank of Dallas, Research Dep’t Working
Paper 0508, 2006).
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The employer then argued, based on employer sanctions, that he was
not entitled to wage loss benefits in worker’s compensation.99 In another case, an undocumented worker injured his left hand requiring
two surgeries and other medical treatment; his employer contested his
worker’s compensation claim based on his immigration status.100
Some employers do retaliate against workers: In one reported case, an
Indian worker was recruited to work in the United States and promised
a place to live, tuition for his education, and an eventual business partnership with the defendants. He received no pay at all for three years,
and the day after he settled his claims of back pay against his employer, he was arrested by immigration authorities on his employer’s
report.101
In advance of Congressional consideration of immigration reform
in 2007, the U.S. government also stepped up its worksite enforcement
program. The enforcement budget has increased 42% since President
Bush took office.102 The U.S. Immigration and Customs Enforcement
(ICE, the DHS division in charge of immigration enforcement) reports
that its worksite arrests in FY 2006 of approximately four thousand
individuals were more than seven times greater than the total number
of arrests in worksite enforcement cases by the INS in 2002, its last
full year of operation.103
While both Republicans and Democrats take a public “get-tough”
stance on unlawful hiring of undocumented workers, worksite enforcement has nearly always targeted immigrant workers, not their
employers. A summer 2006 White House fact sheet touted the arrests
of 1187 workers—but only seven managers—in one raid.104 While its
99. See, e.g., Correa v. Waymouth Farms, Inc., 664 N.W.2d 324, 326 (2003), and
cases cited in Sarah Cleveland, Beth Lyon & Rebecca Smith, Inter-American Court of
Human Rights Amicus Curiae Brief: The United States Violates International Law
When Labor Law Remedies Are Restricted Based on Workers’ Migrant Status, 1 SEATTLE J. OF SOC. JUST. 795 (2003).
100. See Design Kitchen & Baths v. Lagos, 882 A.2d 817, 819 (Md. 2005). See also
Fernandez-Lopez v. Jose Cervino, Inc., 671 A.2d 1051, 1052 (N.J. Super. Ct. App.
Div. 1996) (undocumented immigrant from Guatemala was “plastering the ceiling
over a stairwell area, using a ladder and some planks supplied by the contractor as
make-shift scaffolding, when he fell and was hurt.” His employer challenged his eligibility for workers’ compensation based on his immigration status); and cases cited in
Cleveland, Lyon & Smith, supra note 99.
101. Singh v. Jutla, 214 F. Supp. 2d 1056, 1057 (N.D. Cal. 2002).
102. See THE WHITE HOUSE, FACT SHEET: BASIC PILOT: A CLEAR AND RELIABLE
WAY TO VERIFY EMPLOYMENT ELIGIBILITY (2006), available at http://www.white
house.gov/news/releases/2006/07/20060705-6.html.
103. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, FACT SHEET: EXECUTIVE
SUMMARY ICE ACCOMPLISHMENTS IN FISCAL YEAR 2006 (2006), http://www.ice.gov/
pi/news/factsheets/2006accomplishments.htm.
104. THE WHITE HOUSE, FACT SHEET: BASIC PILOT, supra note 102.
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worksite arrests total a seven-fold increase since 2002, ICE issued fine
notices to only three employers nationwide in 2004, down from 417 in
1999.105
Recently, on December 12, 2006, one thousand ICE agents carried out simultaneous dawn raids at six meat processing plants in six
states and arrested a total of 1282 immigrant workers, most of them
Latin American.106 The raid was trumpeted by ICE as a victory in the
“war on illegal immigration,”107 in part because some of those arrested were using social security numbers belonging to United States
citizens.108
Rather than focus on either the employers who hire undocumented workers or the smugglers who profit by trading in their labor
or supplying them with social security numbers, DHS and the media
reports following the raids spotlighted “identity theft” by undocumented immigrants.109 Those who work with the undocumented
know that workers do what they need in order to secure employment—they invent or purchase social security numbers and use these
simply to have a piece of identification in order to work.110 Ostensibly, workers may not know whether the nine digits they are using have
been assigned to another person. Workers employed at meatpacking
and other plants are not stealing identities in order to make lavish
purchases on someone else’s credit card.111 The new label of “identity
theft” serves only to further demonize workers.
The current employer sanctions regime and the government studies of electronic verification systems should make Congress wary of
rushing to enact a new system. Given the history of employer sanctions, the “new improved” employer sanctions will likely result in
more discrimination against authorized, foreign-looking workers.
More severe employer sanctions mean more incentives for employers
to continue to employ undocumented workers in an underground
105. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-05-813, IMMIGRATION ENFORCEWEAKNESSES HINDER EMPLOYMENT VERIFICATION AND WORKSITE ENFORCEMENT EFFORTS 6–7 (2005).
106. News Release, U.S. Immigration and Customs Enforcement, U.S. Uncovers
Large-Scale Identity Theft Scheme Used By Illegal Aliens to Gain Employment at
Nationwide Meat Processor (Dec. 13, 2006), http://www.ice.gov/pi/news/news
releases/articles/061213dc.htm.
107. Id.
108. Id.
109. Id. See also Julia Preston, Illegal Worker, Troubled Citizen and Stolen Name,
N.Y. TIMES, Mar. 22, 2007, at A1.
110. See Preston, supra note 109. See also Silvia Moreno, Immigration Raid Leaves
Texas Town a Skeleton, WASH. POST, Feb. 9, 2007, at A2.
111. Preston, supra note 109.
MENT:
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economy. Once workers are employed “off the books,” more employers will be tempted to ignore workplace protections of all kinds and to
use immigration status as a club against those workers who complain.
B. Failed Policy: Current Guestworker Programs Create an
Unfair Deal for U.S. Workers and Foreign Workers Alike
I propose a new temporary worker program that will match willing
foreign workers with willing American employers, when no Americans can be found to fill the jobs.
—President George W. Bush, Remarks by the President
on Immigration Policy (Jan. 7, 2004).112
It is laudable that the Bush Administration understands the need
for immigration reform. Lengthy history shows, however, that it is
not so simple to match willing foreign workers with willing employers. Nor is it simple to determine when no Americans can be found to
fill jobs. Guestworker programs present a huge challenge for labor
law enforcement, but they have taken up an inordinate amount of air
space in the public debate on immigration reform, at the expense of
discussion of labor standards.
The United States has long depended on immigrants to compensate for perceived and actual shortfalls in the native-born labor force.
Many programs have been created over the years in an effort to regulate the flow of immigrant labor, most notably the Bracero program
that brought millions of Mexican farm workers to the United States
starting in 1942 to respond to alleged war-time shortages of workers.113 The program started small but grew to 400,000 visas per year
at its peak.114 Mexican citizens filled a total of approximately 4.5
million jobs by the time the Bracero program ended in 1964.115
More recently, industries in the service and manufacturing sectors rely upon immigrant workers who enter the country through both
temporary and permanent visas.116 There are currently two
112. Press Release, Office of the White House Press Sec’y, President Bush Proposes
New Temporary Worker Program (Jan. 7, 2004), http://www.whitehouse.gov/news/
releases/2004/01/20040107-3.html.
113. DEBORAH WALLER MEYERS, TEMPORARY WORKER PROGRAMS: A PATCHWORK
POLICY RESPONSE 1 (Migration Policy Institute, Task Force Insight No. 12, 2006),
available at http://www.migrationpolicy.org/ITFIAF/TFI_12_Meyers.pdf.
114. S. POVERTY LAW CTR., CLOSE TO SLAVERY: GUESTWORKER PROGRAMS IN THE
UNITED STATES 4 (2007).
115. Id.
116. See, e.g., U.S. Dep’t of Labor, Employment & Training Admin., Foreign Labor
Certification, http://www.flcdatacenter.com/CaseH2B.aspx (linking to downloadable
FY 2006 data on occupations of employers using the H-2B system) (last visited June
9, 2007).
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guestworker programs for temporary work lasting less than a year: the
H-2A program, for temporary agricultural work, and the H-2B program, for temporary nonagricultural work. These programs allow employers to obtain permission to hire foreign workers on temporary
visas after engaging in recruitment in the United States and promising
to meet certain requirements regarding wages and working conditions.117 Each program imposes on foreign workers a temporary, nonimmigrant status that ties workers to particular employers and makes
their ability to obtain a visa dependent on the willingness of the employer to make a request to the United States government.118
1. The H-2A Program
The H-2A agricultural guestworker program is arguably the most
exacting of the current guestworker programs, allowing foreign agricultural workers to enter the country temporarily to fill jobs for which
there is a worker shortage.119 Under the current H-2A program, employers must engage in recruitment locally, regionally, and nationally
through the Employment Service, with advertisements in local papers,
and other means of recruitment dictated by the Employment Service
(such as contact with labor unions and church organizations).120 The
recruitment period for United States workers can last up to sixty
days.121 Additionally, employers must promise to hire any United
States worker122 who presents himself or herself for the job until the
work period is half over.123 They must first recruit within the United
States, and, if no workers can be found, they may then be “certified”
to recruit abroad.124 Thus, “willing workers” are in theory matched
with “willing employers” when no local workers may be found.
117. See generally U.S. Dep’t of Labor, Employment & Training Admin., H-2A
Certification, http://www.foreignlaborcert.doleta.gov/h-2a.cfm (last visited Apr. 12,
2007) [hereinafter U.S. Dep’t of Labor, H-2A Certification]; U.S. Dep’t of Labor,
Employment & Training Admin., H-2B Certification for Temporary Nonagricultural
Work, http://www.foreignlaborcert.doleta.gov/h-2b.cfm (last visited Apr. 12, 2007)
[hereinafter U.S. Dep’t of Labor, H-2B Certification].
118. See U.S. Dep’t of Labor, H-2A Certification, supra note 117; U.S. Dep’t of
Labor, H-2B Certification, supra note 117.
119. U.S. Dep’t of Labor, H-2A Certification, supra note 117.
120. Id.; 20 C.F.R. § 655.103(d) (2006).
121. 20 C.F.R. § 655.205(c) (2006).
122. Under the program, a United States worker includes any United States citizen or
national or any worker present in the United States with authorization to be employed.
20 C.F.R. § 655.302 (2006).
123. 20 C.F.R. § 655.203(e) (2006).
124. 20 C.F.R. § 655.206 (2006).
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A recent example from Washington State illustrates how the system works, at its worst, for both U.S. and foreign workers: In 2004,
workers from Thailand were brought to the Yakima Valley in Washington State in 2004 as H-2A agricultural workers.125 As required
under the program, the jobs were first announced through the local
Yakima County Worksource agency, which, according to court documents, referred over one thousand U.S. farm workers for the some 250
jobs. Workers say that they were interviewed and told they had a job,
but not told when and where to show up for work, so the company was
able to claim that it did not have enough U.S. workers.126
An international subcontractor recruited workers from Thailand
as H-2A workers. In order to get work, these workers say they incurred costs of $10,000–17,000 for transportation, passports, visa fees,
and other fees. If they did not have the money, the labor contractor
was only too happy to lend it, often secured by mortgages on the
workers’ homes.127
Once in the United States, the workers were housed in overcrowded, substandard housing, according to their complaint. Deductions from wages were made for state and federal income tax—in a
state that does not have an income tax.128 In September, a settlement
with the state required restitution of $230,000 to workers and the
state.129
The workers covered by this settlement agreement are among the
lucky ones—lucky because both state and federal Departments of Labor got involved in their dispute and further lucky because they are
now among the only H-2A workers in the country covered by a union
contract.130 The notoriety of the case and intense efforts by workers
125. First Amended Complaint, Perez-Farias v. Global Horizons, Inc., No. 05-DV
3061 (E.D. Wash. Apr. 13, 2006).
126. Notice of discontinuation of employment services from Karen T. Lee, Commissioner, State of Washington Employment Security Department, to Mordechai Orian,
Global Horizons Incorporated (May 10, 2005) (on file with New York University
Journal of Legislation and Public Policy); First Amended Complaint at 26–27, PerezFarias v. Global Horizons, Inc., No. 05-DV 3061 (E.D. Wash. Apr. 13, 2006). In
addition, workers allege they were subjected to production standards not part of the
job offer and not provided with promised transportation. Id. at 29.
127. Class Action Complaint at 7, 9–10, Yapunya v. Global Horizons, Inc., No. CV06-3048-RHW (E.D. Wash. June 10, 2006).
128. Settlement Agreement at 2, In Re Global Horizons, Inc., 2005-LI-0056 & 2005ES-001 (Wash. Office of Admin. Hearings, Sept. 22, 2005).
129. Press Release, Washington State Department of Labor and Industries, State
Agencies Reach Settlement with Farm-Labor Firm (Sept. 22, 2005), available at http:/
/www.lni.wa.gov/news/2005/pr050922a.asp.
130. Statement of Arturo S. Rodriguez, President, United Farm Workers of America,
Announcing UFW Contract with Global Horizons, Apr. 11, 2006, http://www.ufw.
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and their advocates produced a first-ever contract with the United
Farm Workers (UFW) union.131 UFW, and its Vietnamese- and Thaispeaking organizers, now administers a contract that covers hundreds
of workers in several states and is far more protective of workers’
rights than the H-2A program provisions themselves.132 For example,
the contract provides for seniority provision, wage payments 2%
above the required pay under the H-2A program, a grievance procedure for violations of the contract or H-2A requirements, and bereavement and transportation pay for workers who must return home to deal
with family emergencies.133
2. The H-2B Program
The H-2B program is the non-agricultural temporary worker program, typically used in the reforestation, landscaping and hospitality
industries, among others. This program provides less legal protection
for both U.S. and foreign workers than does the H-2A program. For
example, there is no requirement for free housing, no requirement that
transportation be reimbursed, and no requirement that a certain
amount of the work promised be actually provided to the worker.
There is no eligibility for free federal legal services.134 The H-2B
program’s recruitment provisions are governed by a General Administrative Letter produced in 1995 by the DOL.135 Essentially, it requires
that employers wishing to take part in the program offer “prevailing”
wages and working conditions, advertise the job opportunity for three
days, and list the job with the Employment Service for ten days.136 In
that program, a number of lawsuits have similarly alleged that
recruiters require that employees pay large recruitment fees or pledge
org/_page.php?menu=organizing&inc=keycampaign/globalhorizons/GH_ASRstatement_1.htm.
131. Press Release, United Farm Workers of America, Breakthrough Nationwide
UFW Pact Protecting Foreign Farm Workers Remedies Abuses Plaguing Guest
Worker Program (Apr. 11, 2006), http://www.ufw.org/_page.php?menu=organizing&
inc=keycampaign/globalhorizons/GHadvisory.htm.
132. Global Horizons – UFW Contract Summary, http://www.ufw.org/_page.php?
menu=organizing&inc=keycampaign/globalhorizons/GHcontract.htm (last visited
June 9, 2007).
133. Id.
134. See S. POVERTY LAW CTR., supra note 114, at 7–8.
135. U.S. DEP’T OF LABOR, EMPLOYMENT & TRAINING ADMIN. GENERAL ADMINISTRATIVE LETTER 1-95, ATTACHMENT TO GAL 1-95, PROCEDURES FOR TEMPORARY
LABOR CERTIFICATION IN NON-AGRICULTURAL OCCUPATIONS 2 (1994), available at
http://wdr.doleta.gov/directives/attach/GAL1-95_attach.pdf.
136. Id. at 4–5.
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collateral with the employer’s representatives in order to be hired.137
A recent compilation of the stories of individual guestworkers chronicles workplace complaints that have not been redressed, unaddressed
workplace injuries, and retaliation in the forestry industry.138
3. By-Passing an Available Workforce
Guestworker programs have the potential to undermine labor
standards for U.S. and foreign workers alike. Specifically, for U.S.
workers, they have the potential to decrease job availability, since labor shortages can be more perceived than real.139 History shows that
in certain labor markets and certain geographic locations, unrestricted
access to guestworkers has the potential to dilute labor standards for
all workers. During the Bracero program, the Secretary of Labor
found that normal competition for improvement in the farm labor market was eliminated and wages had been “inexorably” depressed.140
One study of twenty-nine crops in California for the period 1952 to
1959 found that in eight crops, wage increases were modest, in eleven
crops wages remained stagnant, and in ten crops, wages had actually
declined over this time period.141
In 2005 and 2006, agricultural employers reported widespread labor shortages, in California, Arizona, and Washington State. A review of these claims by Professor Philip Martin indicates that these
shortages may have been exaggerated: “For the past several years,
137. See, e.g., Perez-Perez v. Progressive Forestry Servs., Inc., No. CIV. 98-1474KI, 2000 WL 40927, at *3 (D. Or. Jan. 19, 2000); Escolastico De Leon Granados v.
Eller & Sons Trees Inc., No. 1:05-CV-1473, 2006 U.S. Dist. LEXIS 73781, at *4
(N.D. Ga. 2006); Recinos-Recinos v. Express Forestry, Inc., No. 05-1355, 2006 U.S.
Dist. LEXIS 2510, at *5 (E.D. La. 2006). One such case was recently settled for cash
payments and an agreement to avoid retaliation in the future. See Press Release,
Southern Poverty Law Center, Forestry Workers Get Justice with Settlement of SPLC
Lawsuit (Sept. 8, 2006), available at http://www.splcenter.org/news/item.jsp?aid=
214.
138. THE IMMIGRANT JUSTICE PROJECT OF THE S. POVERTY LAW CTR., BENEATH THE
PINES: STORIES OF MIGRANT TREE PLANTERS 1–2, 14 (2006), http://www.splcenter.
org/images/dynamic/main/ijp_beneaththepines_web.pdf.
139. Guest Worker Programs: Hearing before the Subcomm. on Immigration and
Claims of the H. Comm. on the Judiciary, 104th Cong. (1995) (statement of Richard
M. Estrada, Comm’r of the U.S. Comm’n on Immigration Reform) (“Anyone who
reviews the historical record will find that allegations of actual or impending labor
shortages have been common in this debate but that actual labor shortages have been
rare. . . . Indeed, one often gets the feeling that when growers say they can’t find
workers, they fail to complete the sentence. What they really mean is that they can’t
find workers at the extremely low wages and working conditions they offer.”).
140. ERNESTO GALARZA, MERCHANTS OF LABOR: THE MEXICAN BRACERO STORY
208 (1964) (quoting Sec’y of Labor Arthur J. Goldberg).
141. Id. at 209–11.
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farmers have been complaining of labor shortages, even in areas with
high unemployment rates. Acreage planted and farm sales have been
stable or rising, which is not what would be expected with labor
shortages that resulted in unharvested crops and revenue losses.”142
While it is difficult to measure whether a labor shortage exists,
Martin’s research found that indicators such as numbers of employed
workers, crop values, and acres in production did not indicate labor
shortages in these areas, and that any hard times that growers were
experiencing were due more to dropping prices, weather, and pests.143
Martin did note slight increases in wages in both California and Washington State, which indicated a tightening of the labor market.144
In 1998, a DOL Office of Inspector General report outlined the
shortcomings of the H-2A recruitment system in its ability to reach
U.S. workers.145 These included inefficient administration of the program and less than good faith recruitment efforts by employers.146
Determining whether no “American workers can be found” involves a combination of measuring unemployment rates and requiring
good-faith recruitment of local workers before foreign workers can be
hired. Without adequate labor market testing, guestworker programs
will repeat the problems of the past, to the detriment of all America’s
workers.
4. Taking Advantage of Our “Guests”
For the foreign workers, guestworker status often results in a
bondage-like system where, by law, the workers cannot change employers,147 remedies for labor law violations are limited,148 and termination of employment subjects them not only to loss of jobs but to
142. Philip Martin, Farm Labor Shortages, 13 RURAL MIGRATION NEWS 4 (2006),
available at http://migration.ucdavis.edu/rmn/more.php?id=1155_0_4_0.
143. Id.
144. Id.
145. U.S. DEP’T OF LABOR INSPECTOR GEN., Report No. 04-98-004-03-321, CONSOLIDATION OF LABOR’S ENFORCEMENT RESPONSIBILITIES FOR THE H-2A PROGRAM
COULD BETTER PROTECT U.S. AGRICULTURAL WORKERS (1998), available at http://
www.oig.dol.gov/public/reports/oa/1998/04-98-004-03-321s.htm.
146. Id.
147. The H-2A regulations contemplate an application by an employer or employer
association, who recruits for a particular job. See 20 C.F.R. § 655.100 (2006). Theoretically, a worker can be transferred from one employer to another within an
association.
148. For example, H-2A workers are excluded from the protections of the Migrant
and Seasonal Agricultural Worker Protection Act (AWPA), which is the principal federal employment law for agricultural workers. 29 U.S.C. §§ 1802(8)(B)(ii),
(10)(B)(iii) (2000). A federal appeals court in North Carolina has held that it is not
unlawful for an employer to practice age discrimination in hiring prospective
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deportation.149 Abuses against guestworkers have been chronicled in
the litigation outlined above, as well as a number of news reports.150
The most recent detailed account of these abuses is a report by
the Southern Poverty Law Center, entitled Close to Slavery. 151 In it,
the Law Center chronicles accounts of workers arriving in the United
States with fee-related debts to labor contractors in amounts ranging
from $500 to $10,000, at exorbitant interest rates.152 Workers recruited from Peru, Bolivia, and the United Kingdom to work at a major hotel company in New Orleans paid between $3500 and $5000 to
come to the United States to work in maintenance, housekeeping, and
guest services.153 The H-2A and H-2B programs have produced a veritable army of recruiters who profit from selling the right to work in
the United States to desperate workers.154
guestworkers. Reyes-Gaona v. N.C. Growers’ Ass’n, 250 F.3d 861, 866–67 (4th Cir.
2001).
149. S. POVERTY LAW CTR., supra note 114, at 16.
150. On February 11, 2003, two farmworkers’ advocate groups submitted a public
communication to the Mexican National Administrative Office under the North American Agreement on Labor Cooperation, alleging unfair treatment of H-2A migrant
workers in North Carolina and detailing abuses by North Carolinian employers, including nonpayment of overtime, blacklisting, and denying access to workers’ compensation benefits. See Public Communications Submitted to the Mexican National
Administrative Office, Mexican NAO 2003-1, available at http://www.naalc.org/english/summary_mexico.shtml; see also Barry Yeoman, Silence in the Fields, MOTHER
JONES, Jan.–Feb. 2001, at 42; LANCE COMPA, HUMAN RIGHTS WATCH, UNFAIR ADVANTAGE: WORKERS’ FREEDOM OF ASSOCIATION IN THE UNITED STATES UNDER INTERNATIONAL HUMAN RIGHTS STANDARDS 15, 201–02 (2000), available at http://hrw.
org/reports/pdfs/u/us/uslbr008.pdf (detailing abuses of H-2A workers in North
Carolina).
151. See generally S. POVERTY LAW CTR., supra note 114.
152. Id. at 9.
153. Id. at 12.
154. In litigation and news articles, immigrant workers frequently allege that they
have paid extraordinary fees to recruiters for travel, visa fees, and “recruitment fees.”
Recently, H-2B workers alleged they paid between $3,000 and $5,000 to recruiters
who brought them to the U.S. from Peru, Bolivia, and the Dominican Republic to
work in luxury hotels in New Orleans. See Press Release, S. Poverty Law Ctr., SPLC
Exposes Exploitation of Immigrant Workers (Aug. 16, 2006), available at http://
www.splcenter.org/legal/news/article.jsp?site_area=1&aid=205/; Olvera-Morales v.
Int’l Labor Mgmt. Corp., No. 02-1589, slip op. at 3, 5 (N.D.N.Y. June 1, 2004) (rejecting defendant H-2A and H-2B employers’ arguments that their recruiters’ activities abroad are not covered by U.S. law); Recinos-Recinos v. Express Forestry, Inc.,
No. 05-1355, 2006 WL 197030, at *2 (E.D. La. Jan. 24, 2006) (H-2B forestry worker
class allege that recruiters required pledging of collateral in sending country to prevent workers from leaving before contract completed); Arriaga v. Fla. Pac. Farms,
L.L.C., 305 F.3d 1228, 1232 (11th Cir. 2002) (holding U.S. firms responsible for H2B workers’ transportation, visa, and immigration expenses); see also Charles D.
Thompson, Jr. & Benjamin Grob-Fitzgibbon, Dream or Déjà Vu? The Debate Surrounding George W. Bush’s Proposed Immigration Reform, 14 HEMISPHERE 32, 38
(2004) (stating that some H-2A workers pay as much as $1500 for transportation and
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In some cases, employers confiscate workers’ visas and identity
documents in order to ensure that they cannot leave their jobs.155 Although H-2B program policies require that workers be paid the “prevailing” wage, workers report that they earn piece rate wages far
lower than this amount.156 H-2B workers in forestry report working
between eight and twelve hours a day, without overtime pay.157 An
expanded guestworker program will simply exacerbate these trends.
IV.
REAL SOLUTIONS: POLICIES THAT PROTECT
ALL WORKERS
If employer sanctions do not work, and guestworker programs do
not work, what is an appropriate solution to the problem of exploitation of low-wage workers? At least part of the lesson of low-wage
work in the United States, including work by U.S. citizens,
guestworkers under various programs, and undocumented workers,
shows that comprehensive immigration reform must mean comprehensive enforcement of the hard-won labor protections that all workers in
the United States rely upon, as a matter of law, economics, and human
rights.158 If immigration reform is not accompanied by enforcement
of minimum labor standards, an expanding pool of low-wage workers
will be subject to the abuses outlined here. If an expanded
guestworker program is not accompanied by sufficient labor standards
and enforcement of these, more guestworkers will be hired in place of
costs); Ronald Goldfarb, MIGRANT FARM WORKERS: A CASTE OF DESPAIR 19–28
(1981); Dana Harman, Many ‘Guest Workers’ Vulnerable, Migrant Advocates Say;
Abuse by Employers, Lax Oversight Cited, USA TODAY, Apr. 26, 2006, at A10 (reporting typical Mexican guestworker estimate that he paid about $500 in fees in order
to arrive in U.S. worksite); Leah Beth Ward, Desperate Harvest, CHARLOTTE OBSERVER, Oct. 31, 1999 (guestworkers in 1999 paid up to $500 for an H-2A visa to
work for a grower in North Carolina); Mary Lee Hall, Defending the Rights of H-2A
Farmworkers, 27 N.C. J. INT’L L. & COM. REG. 521, 522 (2002); Tom Knudson, It
Was Like Slavery, SACRAMENTO BEE, Nov. 13, 2005, at A11 (reporting complaint by
forestry worker that he “signed over his home” to secure a position).
155. S. POVERTY LAW CTR., supra note 114, at 15.
156. Id. at 18.
157. Id. at 19.
158. In 2003, the Inter-American Court of Human Rights issued an advisory opinion
(Advisory Opinion OC-18/03) on the treatment of unauthorized migrant workers and
their labor rights in the countries that make up the Organization of American States.
Advisory Opinion OC-18/03 provides that as a matter of compliance with the antidiscrimination provisions of various inter-American human rights treaties, countries
must protect the rights of all migrant workers. Juridical Condition and Rights of the
Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct.H.R. ¶¶ 118,
119 (Sept. 27, 2003), available at http://www.corteidh.or.cr/serie_a_ing/serie_a_18_
ing.doc.
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workers already in the country, and employers will continue to take
advantage of them. We must enforce existing laws, and take a hard
look at exclusions built into those laws to develop a more effective
system of labor law compliance. This section proposes policy options
that are designed to advance the labor rights of all workers, with special attention to protection of vulnerable immigrant workers.
What can Congress and the Administration do to guarantee
American workers a fair day’s pay? It can make the DOL, including
the OSHA, more effective. It can close the current loopholes that allow employers to mischaracterize workers as “independent contractors.” And it can stop rewarding employers who use immigration
status to retaliate against workers.
A. Making the DOL More Effective
Workplace enforcement of labor standards should be at a level
designed to send a message that America will not tolerate non-payment and underpayment of wages. This means more emphasis on enforcement: more personnel and more focus on industries that are
known violators of wage and hour laws, so that at a minimum, lowwage workers get the wages that they are entitled to under current
law.159
1. Indexing the Minimum Wage
The new Democratic majority in Congress in 2007 indicated that
one of its first orders of business was to increase the minimum wage.
The House introduced the bill on January 5, 2007, and passed it on
January 10 as one of its first bills, but the effort stalled in the Senate.
A minimum wage increase was finally passed in May 2007, to take
effect in July 2007. Congress should both raise the minimum wage
and peg the new minimum to inflation, so that the lowest-paid workers
get automatic increases each year to keep their purchasing power in
line with consumer price hikes.160
As is noted in the introduction to this piece, increasing the minimum wage is only half the battle. Just as it should learn from the
159. For a list of the statistics on various low-wage industries, see IMMIGRANT &
NONSTANDARD WORKER PROJECT, NAT’L EMPLOYMENT LAW PROJECT, HOLDING THE
WAGE FLOOR: ENFORCEMENT OF WAGE AND HOUR STANDARDS FOR LOW-WAGE
WORKERS IN AN ERA OF GOVERNMENT INACTION AND EMPLOYER UNACCOUNTABILITY
(2006), available at http://www.nelp.org/docUploads/Holding%20the%20Wage%20
Floor2%2Epdf.
160. See discussion supra note 11.
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laboratories of the states in indexing the minimum wage, Congress
must follow the states’ lead to adequately enforce it.
2. Beefing Up Enforcement
Congress should follow the lead of states that have been most
successful in enforcing new minimum wage standards.
First, it should increase the number of Wage and Hour investigators from 788 to at least double that amount and use its resources
strategically to focus audits on problem industries with persistent violations.161 Immigrant and other low-wage communities can help identify abusive industries and employers.162 Congress should create an
Office of Community Outreach charged with working with community and organizing groups to identify problems and witnesses for enforcement targets and to educate workers about their rights.163
Worthy of consideration, too, are laws permitting community organizations and unions to file complaints on behalf of workers, as some
states and localities have done.164
Many states have also increased penalties for violations of wage
and hour rights, and Congress should do the same. It should enhance
liquidated damages to workers for unpaid wages up to three times the
wages owed, in order to deter future violations and encourage workers
to come forward. One recent example is the Arizona Minimum Wage
Law, which allows for treble damages for violations of the state minimum wage.165
161. The new H-2C temporary worker program provided for in S. 2611, the Comprehensive Immigration Reform Act of 2006, would have included the annual hiring of
2000 additional investigators at the DOL, but their work was to be confined to the
enforcement of the provisions of that bill. S. 2611, 109th Cong. § 412 (2006).
162. For some examples of immigrant and community groups partnering with labor
standards enforcement efforts, see NAT’L EMPLOYMENT LAW PROJECT & BRENNAN
CTR. FOR JUSTICE, EXAMPLES OF WAGE ENFORCEMENT ACTIONS AROUND THE COUNTRY (2005), available at http://www.nelp.org/docUploads/campaign%20descriptions
%2Epdf.
163. This has been done at the state level in several states, including Illinois. See id.
at 2.
164. For example, under the Illinois Day and Temporary Labor Service Agency Act,
“any interested person” may file a claim. 820 ILL. COMP. STAT. ANN. 175/55 (2006).
Under the San Francisco minimum wage ordinance, “any person aggrieved by a violation of this Chapter, any entity a member of which is aggrieved by a violation of this
Chapter, or any other person or entity acting on behalf of the public . . . may bring a
civil action in a court of competent jurisdiction against the Employer . . . .” S.F.
ADMIN. CODE CH. 12R.7(c).
165. See Proposition No. 202, An Initiative Measure Repealing Section 23-362,
Amending by Adding New Section 23-362 Relating to the Arizona Minimum Wage
Act (2006), available at http://www.azsos.gov/election/2006/Info/PubPamphlet/english/Prop202.pdf.
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One model for consideration in making the DOL more effective
is Senator Edward Kennedy’s amendment to the Senate Comprehensive Immigration Bill, proposed during the heated debate on that
bill.166 The amendment, which failed by a vote of 57–40, would have
created enhanced enforcement of labor protections for U.S. workers
and guestworkers alike, by increasing the dollar amounts of civil and
criminal fines for violation of labor rights, strengthening enforcement
of the NLRA, equalizing remedies for immigrant and non-immigrant
workers, using some of the fees generated by the guestworker program
for a labor law enforcement fund, and increasing bilingual staff at the
DOL.167 The bill itself is discussed in more detail in later sections of
this article.168
Finally, FLSA should be amended to include a “hot goods” capability for services performed under substandard conditions. The federal government already has the power, under FLSA’s “hot goods”
provision, to stop shipment of goods prepared under sweatshop conditions.169 Under the provision, the DOL is the only entity with the
power to seize goods, and it may only seize goods produced in substandard labor conditions, so it is a seldom-used remedy. In the new
service economy, an agenda for low-wage workers should expand the
hot goods power to include the capacity to stop services provided
under substandard conditions and a proposal to permit private parties
to use the hot goods remedy.
3. Closing Loopholes for Independent Contractor Abuses
Companies should not be allowed to evade responsibility by contracting it away to labor brokers. This means holding accountable
worksite employers who use contractors.
Congress should create in FLSA a presumption that workers providing labor or services for a fee are “employees” covered by the Act.
This is already law in over ten states’ workers’ compensation acts170
166. See 109 CONG. REC. 64, S4913–14 (May 22, 2006) (statement of Senator
Kennedy).
167. See id.
168. See discussion infra Part IV.D.
169. 29 U.S.C. § 215 (a)(1) (2000).
170. See, e.g., WASH. REV. CODE § 51.08.180 (2002) (defining “worker” in Washington state workers’ compensation act as “every person in the state who is engaged in
the employment of an employer under the title, whether by way of manual labor or
otherwise in the course of his or her employment . . . .”). At least ten states (Arizona,
California, Colorado, Connecticut, Delaware, Hawaii, New Hampshire, North Dakota,
Washington, Wisconsin) have a general presumption of employee status in their workers’ compensation acts (regardless of what job the injured worker has). ARIZ. REV.
STAT. ANN. § 23-901(5)(b) (1995); CAL. LAB. CODE § 2750.5 (2003); COLO. REV.
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and in Massachusetts’ wage act.171 Congress should do away with
employer incentives to misclassify workers as independent contractors. Currently, employers decide whether their workers are employees or independent contractors with little scrutiny from the Internal
Revenue Service (IRS) and no consequences.172 Section 530 of the
Revenue Act of 1978, 26 U.S.C. § 7436, ties the IRS’s hands in attempting to deter misclassification. Under the statute, an employer
who is found by the IRS to have misclassified its workers can have all
employment tax obligations waived. Section 530 has, since 1978, prohibited the IRS from issuing clarifying regulations on independent
contractor misclassification enforcement and has prevented the IRS
from collecting millions of dollars of unpaid taxes and penalties.173 It
applies when an employer can show a “reasonable basis” for having
treated its workers as independent contractors.174 Among other factors, a business can rely on its belief that a significant segment of the
industry treats workers as independent contractors, thereby perpetuating industry-wide noncompliance with the law.175
In addition to these steps Congress can take in the short term, in
the long term, Congress should look more closely at the groups of
workers who are left out of minimum wage and overtime regulation in
the United States and make sure that all workers have the protection of
this minimum standard of pay. As noted, at present, domestic workers
who primarily provide companionship services to the aged and infirm
(“home health workers”) are exempt from minimum wage and overtime requirements, and all domestic workers are excluded from overSTAT. § 8-40-202 (2006); CONN. GEN. STAT. § 31-275(9)(a) (2003); DEL. CODE ANN.
§ 2301 (10) (2006); HAW. REV. STAT. § 386-73.5 (2004); N.H. REV STAT. ANN.
§ 281-A:2(VI)(b)(1) (1999); N.D. CENT. CODE § 65-01-03 (2004); WASH. REV. CODE
§ 51.08.180(1) (2002); WIS. STAT. § 102.07(4) (2001).
171. MASS. GEN. LAWS ch. 149 § 148B (2007).
172. See FRANCOIS CARRE & J.W. MCCORMACK, CONSTRUCTION POLICY RESEARCH
CENTER, HARV. LAW SCH. AND HARV. SCH. OF PUB. HEALTH, THE SOCIAL AND ECONOMIC COSTS OF EMPLOYEE MISCLASSIFICATION IN CONSTRUCTION (2004); MICHAEL
KELSAY ET AL., DEP’T OF ECON., UNIV. OF MISSOURI-KANSAS CITY, THE ECONOMIC
COSTS OF EMPLOYEE MISCLASSIFICATION IN THE STATE OF ILLINOIS (2006); STATE OF
NEW JERSEY, COMM’N OF INVESTIGATION, CONTRACT LABOR: THE MAKING OF AN
UNDERGROUND ECONOMY 2, 9–12 (1997).
173. U.S. GEN. ACCOUNTING OFFICE, GAO/T-GGD-96-130, TAX ADMINISTRATION:
ISSUES IN CLASSIFYING WORKERS AS EMPLOYEES OR INDEPENDENT CONTRACTORS:
TESTIMONY BEFORE THE SUBCOMMITTEE ON WAYS AND MEANS 5–6 (1996) (statement of Natwar M. Gandhi, Assoc. Dir. of Tax Policy and Admin. Issues).
174. See 26 U.S.C. § 3401 (2000) and accompanying notes. See also Internal Revenue Manual, Technical Guidelines for Employment Tax Issues, § 4.23.5.2,
4.23.5.2.2.3 (2003), available at http://www.irs.gov/irm/part4/ch23s05.html#d0e3285
05.
175. See Internal Revenue Manual, supra note 173, at § 4.23.5.2.2.3 (2003).
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time pay.176 “Tipped employees’” wages are subject to deduction for
tips they supposedly receive.177 Agricultural employees are exempt
from overtime rules.178
For a longer term agenda on contingent labor and misclassification, Congress need look no further than the work of the Dunlop Commission.179 In 1995, the Dunlop Commission released its report after
a twenty-month review of labor and employment laws and relations in
the United States.180 Among its recommendations was adopting a single definition of employee for all workplace laws based on the economic realities of the employment relationship.181 The Commission
stated:
The law should confer independent contractor status only on those
for whom it is appropriate—entrepreneurs who bear the risk of
loss, serve multiple clients, hold themselves out to the public as an
independent business, and so forth. The law should not provide
incentives for misclassification of employees as independent contractors, which costs federal and state treasuries large sums in uncollected social security, unemployment, personal income, and
other taxes.182
In the longer term, Congress should also consider industry-specific legislation. There is precedent for such an approach in the Migrant and Seasonal Agricultural Worker Protection Act (AWPA),
passed in 1982, to address the special problems of agricultural workers. The AWPA provides for registration and licensing of labor intermediaries, regulation of housing conditions and the conditions of
transportation of agricultural workers, and provides for remedies for
unsafe conditions or misrepresentation of terms and conditions of employment.183 Some states have passed protective legislation that focuses on certain groups of workers thought to be vulnerable to abuse.
At least five states have farm labor contracting laws (California, Flor176. 29 U.S.C. § 213(a)(15) (2000); 29 U.S.C. § 213(b)(21) (2000); 29 C.F.R.
§ 552.109(a) (2006).
177. 29 U.S.C. § 203(m) (2004).
178. 29 U.S.C. § 213(b)(12).
179. The DOL’s Commission on the Future of Worker-Management Relations (the
“Dunlop Commission”) was created to study the contingent workforce. For its final
report, see U.S. DEP’T OF LABOR, COMM’N ON THE FUTURE OF WORKER-MGMT. RELATIONS, REPORT AND RECOMMENDATIONS (1995), available at http://www.dol.gov/_
sec/media/reports/dunlop/dunlop.htm#Table.
180. Id. at Preface.
181. Id. at Section 5.
182. Id. at Executive Summary.
183. See 29 U.S.C. §§ 1801–1872 (2004).
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ida, Idaho, Oregon, and Washington).184 Three states have laws regulating employment in the garment industry (California, New Jersey,
and New York).185 One state has specialized laws regulating the meat
packing industry (Nebraska).186 Six states have laws that regulate day
labor (Arizona, Florida, Georgia, Illinois, New Mexico, and Texas).187
Domestic worker legislation was proposed in New York and California in 2006.188 The Day Labor Fairness and Protection Act, first proposed by Congressman Luis Gutierrez in the 108th Congress, would
have addressed the special problems of day laborers.189 These are industries known for abuse of vulnerable workers, yet excluded either
by law or in practice from basic labor standards, often due to the use
of labor intermediaries.
B. Making OSHA More Effective
The steps that can protect the pocketbooks of low-wage workers
can also protect their lives. This means more emphasis on targeted,
sector-specific enforcement, dismantling barriers to enforcement faced
by immigrant and low-wage workers, higher penalties for endangering
worker health and safety, and stronger protections for those who refuse unsafe work.
1. Beefing Up Enforcement
OSHA’s current educational efforts are laudable, but they have
not solved problems of workplace injuries, especially the alarming
rate of injuries and deaths among Latino and immigrant workers. For
example, though at least one in ten meatpacking workers is injured
every year, OSHA inspects only “about 75 of the more than 5,000
184. CAL. LAB. CODE §§ 1682–1699 (West 2007); FLA. STAT. ANN. §§ 450.27–
450.39 (West 2007); IDAHO CODE ANN. § 44–1601; OR. REV. STAT.
§§ 658.405–658.503 (2005); WASH. REV. CODE ANN. §§ 19.30.010–19.30.902 (West
2005).
185. CAL. LAB. CODE §§ 2675–2684 (West 2007); N.J. STAT. ANN. §§ 34:6144–34:6-146 (West 2000); N.Y. LAB. LAW §§ 340–349-a (McKinney 2007).
186. NEB. REV. STAT. § 48-2213 (2004).
187. ARIZ. REV. STAT. ANN. §§ 23-551–23-553 (2006); FLA. STAT. ANN.
§§ 448.20–448.26 (West 2006); GA. CODE ANN. §§ 34-10-1–34-10-6 (2004); 820 ILL.
COMP. STAT. 175/1–175/99 (2006); N.M. STAT. ANN. §§ 50-15-1–50-15-7 (2005);
TEX. LAB. CODE ANN. §§ 92.001–92.031 (Vernon 2001).
188. Assemb.B. 628, 229th Leg., Reg. Sess. (N.Y. 2007); Assemb.B. 551, 2005-06
Leg., Reg. Sess. (Cal. 2005). In California, AB 551 passed both houses of the state
legislature in 2005, but was vetoed by Governor Schwarzenegger as an interference
with the marketplace. Governor’s Veto Message, Sept. 2, 2005, available at http://
www.leginfo.ca.gov/pub/05-06/bill/asm/ab_0551-0600/ab_551_vt_20050902.html.
189. H.R. 2870, 108th Cong. (2003).
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meatpacking plants each year.”190 OSHA does not keep individual
plant records, so it is not clear how many accidents occur at each
plant.191 In Arizona, construction industry leaders complain that the
state does not have enough inspectors to adequately police the highlydangerous construction industry.192 Given these continuingly poor
outcomes, OSHA must embark on a targeted enforcement program for
the industries, employers, and operations where workers, both immigrant and native, are at high risk of injury. Both civil and criminal
penalties for OSHA violations should be increased. OSHA should issue its long-delayed final standard requiring employers to pay for personal protective equipment (PPE).193
2. Beefing Up Outreach and Training
OSHA should enhance its efforts to protect workers, focusing on
immigrant and Latino workers through increased safety and health
training in languages understood by immigrant communities, enhancing its own language capabilities and increasing its outreach, training,
and education efforts. OSHA could learn as well from some of the
innovative programs that community groups have undertaken and
could provide funding to these programs.
For example, two community-based training programs run, respectively, by Paper, Allied Industrial, Chemical and Energy Workers
International Union (PACE) and the Service Employees International
Union (SEIU), use “curricula based on a worker-centered learning,
training led by worker trainers, and a chief program goal of increasing
workers’ ability to advocate for health and safety changes in the workplace.”194 A review of the programs found that “[b]etween half
(55.4%) and three quarters (74.8%) of respondents from each type of
facility reported that they or their coworkers were more willing to
190. Sudeep Reddy, Processing Plants’ Dangers Don’t Scare off Migrants: One in
10 Workers Injured Each Year at Meatpacking Factories, DALLAS MORNING NEWS,
Nov. 21, 2006, at 1A.
191. Id.
192. Chad Graham and Matt Dempsey, Hispanic Workers Suffer During Boom, THE
ARIZ. REPUBLIC (Phoenix), Feb. 13, 2007, at D1.
193. See Employer Payment for Personal Protective Equipment, 64 Fed. Reg. 15402
(proposed Mar. 31, 1999) (to be codified at 29 CFR pts. 1910, 1915, 1917, 1918,
1926). In proposing the payment for PPE rule, OSHA found that issuance of a rule
requiring employer payment for protective equipment would significantly reduce the
risk of injuries, preventing over 47,000 injuries and seven fatalities each year. Id.
However, no final rule has yet been issued.
194. Tobi M. Lippin et al., Empowerment-Based Health and Safety Training: Evidence of Workplace Change from Four Industrial Sectors, 38 AM. J. INDUS. MED.
697, 698 (2000).
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raise health and safety concerns after the training.”195 In Dallas-Ft.
Worth, a Capital Development Program (CDP), a forty-hour training
course which attempts to break down barriers of language, literacy,
and culture, has resulted in “an injury rate far below the national average for a heavy construction site.”196 More training and outreach in
conjunction with groups on the ground, combined with a targeted enforcement system that sets punishment at a level high enough to deter
future violations, could make the difference for many workers.
C. More Effective Employer Sanctions
In order to insure that all workers are equally protected by labor
laws and to reduce the incentives to hire undocumented workers, Congress should ensure that immigration status should be entirely irrelevant to whether or not a worker is protected by core labor standards.
These include protection against discrimination on the job, protection
from retaliation for making complaints, access to workers’ compensation, the protection of the Unfair Immigration-Related Employment
Practices Act, and ability to exercise freedom of association and collective bargaining. Senate Bill 2611, the comprehensive immigration
bill that passed the U.S. Senate in May 2006, contained many of the
elements outlined here for both immigration and labor law reform, but
not all.197 Prior pieces of comprehensive immigration reform legislation also contained some of these proposals. Each was incomplete in
its protections in ways that will be outlined here.
1. Provide Legal Remedies for Labor Law Violations to All
Workers
A comprehensive legalization program will allow many currently
undocumented workers to enforce their labor rights. But under any
system, some undocumented workers will continue to be present. Em195. Id. at 702.
196. JAMES L. NASH, BEST PRACTICES IN TRAINING HISPANIC WORKERS (2004),
available at http://www.cdc.gov/elcosh/docs/d0600/d000652/d000652.html.
197. Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong. (2006)
(Engrossed as Passed by Senate). There was a plethora of immigration legislation in
the 108th and 109th Congresses. See ANDORRA BRUNO, CRS REPORT FOR CONGRESS
ORDER CODE RL32044, IMMIGRATION: POLICY CONSIDERATIONS RELATED TO GUEST
WORKER PROGRAMS (2006), available at http://fpc.state.gov/documents/organization/
62664.pdf. This analysis focuses on S. 2611 because that bill passed one house of
Congress, was the subject of intense bi-partisan negotiation, and contained many elements that would have protected labor rights of immigrant and U.S. workers. Senate
Bill 2611 and its more protective predecessor, the Safe, Orderly, Legal Visas and
Enforcement (SOLVE) Act, are highlighted here in the hope that these provisions can
be strengthened in 2007.
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ployer sanctions provisions will cause some employers to hire undocumented workers off the books. These workers, as well as those who
fall out of status, due to job loss, minor criminal convictions, missed
deadlines, and other reasons, will be subject to the same limitations on
enforcement of their rights as are all currently undocumented workers.
In order to avoid abuse of these workers, immigration reform legislation should guarantee that all workers, regardless of immigration status, have equal access to remedies for labor law violations and equal
coverage under workers’ compensation laws.
Two proposals in the 108th Congress included this concept. The
Safe, Orderly, Legal Visas and Enforcement (SOLVE) Act, introduced
by Senator Kennedy in the Senate and by Representative Gutierrez in
the House, provided that “backpay or other monetary relief for unlawful employment practices shall not be denied to a present or former
employee” as a result of failure to comply with employment verification laws.198 The Fairness and Individual Rights Necessary to Ensure
a Stronger Society (FAIRNESS) Act contained identical language.199
Senator Kennedy’s amendment to S. 2611 also contained a similar
provision saying that an alien subjected to an illegal employment practice “may not be denied backpay or other monetary relief” on the basis
of the employee’s immigration status.200
2. Equalize the anti-discrimination provisions of IRCA with other
anti-discrimination laws
As noted above, the anti-discrimination protections in IRCA were
enacted to address discrimination that was expected to result from the
implementation of employer sanctions. While IRCA’s anti-discrimination protections have been critical in protecting some workers from
discrimination, many others are excluded from these provisions, including lawful permanent residents not intending to become citizens
and all unauthorized workers.201 Allowing all workers to present
claims for violations of the anti-discrimination provisions, and removing the “intent” requirement would bring IRCA into line with other
civil rights laws that prohibit discrimination based upon race, color,
national origin, religion, and gender. For example, Title VII of the
Civil Rights Act declares certain practices to be discriminatory conduct without an additional requirement of discriminatory “intent,” as
198.
199.
200.
nedy,
201.
S. 2381/H.R.4262, 108th Cong. § 321 (2004).
H.R. 3809, 108th Cong. § 702 (2004).
See 109 CONG. REC. 64, S4913–14 (May 22, 2006) (statement of Senator KenS.AMDT. 4106 § 807).
See 8 U.S.C. § 1324b(a)(3) and discussion supra Part III.A.1. .
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do both the Age Discrimination in Employment and Americans with
Disabilities Acts.202 Taking a step in the right direction, S. 2611 contained a provision that would have expanded the definition of “protected individual” to include all legal permanent residents, immigrants
granted temporary protected status, immigrants granted parole, and
non-immigrants admitted under temporary guestworker programs.203
3. Firewall Between Immigration and Labor Law Enforcement
All workers should have meaningful access to systems of labor
law enforcement. This means preserving historic boundaries between
labor law enforcement and enforcement of immigration law.
The Supreme Court has specifically recognized that the failure to
ensure equal access to labor law enforcement for undocumented migrants has a detrimental impact on all workers, nationals and migrants
alike.204 As has been noted, if employers can hire, abuse, and then
fire undocumented workers who complain about labor law violations,
they will be encouraged to hire more undocumented workers. Since
workplaces with immigrants also contain non-immigrant workers, employers who can deport their problems away can disrupt, for example,
an organizing drive including both documented and undocumented
workers. For these reasons, since the late 1990’s, U.S. immigration
authorities have had a policy that gives some protection to workers
when an employer threatens to turn them in to immigration personnel
in retaliation for workplace complaints.205 The policy should be
strengthened and codified.
In 1998, the DOL entered into a Memorandum of Understanding
with the INS establishing that the labor agency will not report the
undocumented status of workers if discovered during an investigation
of a labor dispute triggered by an employee complaint, nor will it inquire into a worker’s immigration status while conducting a com-
202. 42 U.S.C. § 2000e-2 (1994); 29 U.S.C. § 623 (1999); 42 U.S.C. § 12112
(1995).
203. Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong.
§ 305(b) (2006).
204. “[A]cceptance by illegal aliens of jobs on substandard terms as to wages and
working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions.” DeCanas v. Bica, 424 U.S. 351,
356–57 (1976).
205. OFFICE OF PROGRAMS & OFFICE OF FIELD OPERATIONS, POLICY AND PLANNING,
REV. OPERATIONS INSTRUCTION 287.3 (Dec. 4, 1996) (on file with New York University Journal of Legislation and Public Policy).
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plaint-driven investigation.206 However, studies of the policy show
that it has not been uniformly enforced.207 A recent raid in Tar Heel,
North Carolina, conducted with the employer’s cooperation following
a union-organized walkout of hundreds of workers, illustrates how
employers facing labor disputes can use immigration law to rid themselves of workers who complain.208 This policy, too, should be
strengthened and codified.209
4. “Whistleblower” protections
As noted above, it is all too common for employers to misuse
immigration status to cause the deportation of workers who complain.
Measures must be taken to ensure that workers with valid claims have
the right to remain in the United States and present them. In other
areas of the law, Congress has made special status provisions for immigrants who are involved in legal cases. With passage of the Trafficking Act and the Violence Against Women Act (VAWA),
immigrant victims of domestic violence or those involved in criminal
cases may be eligible for the T and U visas, which grant the worker
“lawful temporary status,” without a fixed duration, and work authorization. After three years of continuous presence in the United States
on either visa, an immigrant satisfying additional criteria set forth in
the law will be eligible to adjust her status to legal permanent resident.210 While SOLVE contained temporary protection of witnesses
206. See Memorandum of Understanding Between the Immigration and Naturalization Serv. Dep’t of Justice and the Employment Standards Div. Dep’t of Labor, Nov.
23, 1998, available at http://www.dol.gov/esa/whatsnew/whd/mou/nov98mou.htm.
207. Out of 184 worksite raids conducted over a thirty-month period in New York,
122 of the businesses had a labor investigation pending, according to one analysis.
See Michael J. Wishnie, Introduction: The Border Crossed Us: Current Issues In
Immigrant Labor, 28 N.Y.U. REV. L. & SOC. CHANGE 389, 390–91 (2004).
208. Julia Preston, Immigration Raid Draws Protest From Labor Officials, N.Y.
TIMES, Jan. 26, 2007, at A17.
209. Each of these provisions was contained, to some degree, in the SOLVE immigration bill in 2004. S. 2381/H.R.4262, 108th Cong. (2004). It included confidentiality in investigations by the Office of Special Counsel, which enforces the
immigration-related discrimination laws. Id. § 322(2)(A)(2). It also included nonintervention by the Department of Homeland Security in labor disputes. Id. § 318.
210. The Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) provides a T visa as a way for people who have been trafficked into the United States for
illegal purposes to obtain temporary lawful status, provided they cooperate with any
reasonable requests for assistance made by law enforcement officials. Pub. L. No.
106-386 § 107(f), 114 Stat. 1465 (2000). U visas, available for victims of certain
crimes, enumerated in the Act, have similar provisions. Id. The Violence against
Women Act, passed as a title of VTVPA, also provides for a path to legalization for
certain immigrant women who are victims of domestic violence. Id. § 1513(f).
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involved in labor disputes,211 the Trafficking Act and VAWA are
more generous—they allow a path to legalization for victims of crime.
A similar path should be made available to victims of abuse at the
hands of their employers.
5. Eligibility for Legal Help
In 1974, Congress passed the Legal Services Corporation Act,
which was designed to provide equal access to the civil justice system
for people who cannot afford lawyers.212 Legal Services Corporation
programs are prohibited from providing legal assistance “for or on
behalf of” most immigrant workers who are not lawful permanent residents.213 One of the key reasons that working people need access to
the civil justice system is to enforce their labor rights. Undocumented
workers and H-2B guestworkers tend to be impoverished and unable
to afford private lawyers. The complexities of the H-2B program
make it unlikely that many lawyers in the country are familiar enough
with it to pursue labor cases. Even where legal questions involve a
simple wage claim, the complexities of working with undocumented
workers make it difficult for private lawyers to take their cases. As a
practical matter, without the means to bring suit in court, workers’
rights cannot be adequately enforced.214
D. Repair Existing Guestworker Programs
These same principles of stepped-up enforcement of core labor
standards, regulation of subcontracting activities and guaranteed
equality under the law apply equally to workplaces with guestworkers.
211. SOLVE Act, S. 2381/H.R. 4262, 108th Cong. § 319 (2004). Senator Kennedy’s amendment contained a provision that would have allowed the Secretary of
Labor to extend work authorization for immigrants who had filed labor complaints,
but only in 60-day increments. 109 CONG. REC. 64, S4914 (May 22, 2006) (statement
of Senator Kennedy, S.AMDT. 4106, § 806).
212. Legal Services Corporation Act, 42 U.S.C. § 2996 (2000).
213. 45 C.F.R. § 1626.1 (2006). This policy is currently being challenged as a violation of the North American Agreement on Labor Cooperation. Petition submitted to
the National Administrative Office of Mexico (Apr. 13, 2005), available at http://
www.dol.gov/ilab/media/reports/nao/submissions/2005-01petition.htm. Under an
amendment to S. 2611, H-2B forestry workers would have been eligible for representation by federally-funded legal services programs. S. 2611.ES, 109th Cong. § 774
(2006).
214. For example, in adopting the AWPA, Congress identified the lack of a private
right to sue as a primary reason for the failure of its predecessor statute. See S. REP.
NO. 93-1206, at 3 (1974). Accordingly, one of the “major purpose[s]” of the 1974
Amendments was to “creat[e] a civil remedy for persons aggrieved by violations of
the act.” S. REP. NO. 93-1206, at 6 (1974). For further discussion of governmental
and private pathways for enforcement, see discussion infra Part IV.D.4.
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Rather than beginning anew with a bigger guestworker program, Congress should repair the problems with the existing programs for lowwage workers.
Because of the abusive history and enormous potential for
guestworker programs to be misused to bypass an available workforce
and to take advantage of the lack of freedom of guestworkers themselves, the new Congress must recognize and correct past mistakes in
guestworker programs, before turning to a new, additional
guestworker program. The following is a list of additional principles
that would be needed to reform guestworker programs in an effort to
protect the labor rights of both American- and foreign-born workers.
Senate Bill 2611 contained a number of the concepts outlined
here for guestworker reform, but not all. Most notably, it did allow
guestworkers to have a path to legalization, so that eventually, workers who had spent time as guestworkers in the country would be able
to make their home in the United States.215 Of particular concern,
however, the newly-designed guestworker program outlined for nonagricultural temporary workers contained in the bill had more in common with the less-protective H-2B program than the more-protective
H-2A program, both of which have been the subject of extreme abuse.
The following section gives particulars on each of these issues, as well
as ideas to reform these programs.
1. Developing (and Enforcing) a Labor Market Test
The notion of a labor market test under current guestworker programs generally means that the employer is required to advertise jobs
in order to test the availability of U.S. workers. As illustrated in the
Global Horizons example outlined above, these efforts can be less
than good-faith.216 As noted above, the Office of Inspector General
for the DOL has found shortcomings in the H-2A recruitment system—currently the most demanding of the guestworker programs.217
The proposed H-2C program in S. 2611 potentially required less in the
way of a labor market test by recruitment of local workers than is
currently required in the H-2B program. According to the bill, if the
DOL certified a shortage in an industry, a prospective H-2C employer
need only notify current workers that it is filing a petition.218 If no
215. Under the proposal, workers would have been able to self petition for a permanent visa after four years as a guestworker, or employers would have been allowed to
petition for them. S. 2611, 109th Cong. § 408(h) (2006).
216. See supra Part III.B.1.
217. See supra note 145 and accompanying text.
218. S. 2611, 109th Cong. § 404 (2006).
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shortage has been certified, the employer must undertake recruitment
efforts through the state employment service ending fourteen days
before the filing of the petition for foreign workers.219 The bill provides for an objective test of the labor market by allowing the DOL to
certify, by unspecified methods, that there is a shortage in an industry.220 Also, the program may not be used in an area where “the unemployment rate for workers who have not completed any education
beyond a high school diploma during the most recently completed 6month period averaged more than 9.0 percent.”221
The “Agricultural Job Opportunity, Benefits, and Security Act”
(“AgJobs”) was first introduced in 2003 by Senator Larry Craig and
Representative Chris Cannon.222 It would have granted legal status to
millions of farm workers in the United States and would have overhauled the H-2A agricultural worker program.223 It was eventually
incorporated into S. 2611. The AgJobs labor market test provisions
incorporated into S. 2611 were more extensive, owing at least in part
to its origins in the current H-2A program. Employers would be required to individually contact former employees, place a job order in
the local job market and through the Employment Service, and employ
any U.S. worker who comes to it for 50% of the contract period.224
Clear recruitment requirements more like those in the H-2A program, combined with efforts to develop a set of objective labor market
indicators, and active oversight of recruitment efforts, would help
identify the industries and geographical areas in which there is a true
undersupply of workers. These more objective labor market indicators could include unemployment and employment rates among workers with the same skill levels as the guestworkers who would be filling
the jobs, or focused on the industries in which guestworkers are being
requested, within a particular labor market area.
2. Wage Levels That Avoid Depression of Wages
While most economists agree that the presence of immigrant
workers does not cause a general depreciation in wages for United
States workers,225 the data on the Bracero program show some wage
219. Id.
220. Id.
221. Id.
222. BRUNO, supra note 197, at 10.
223. See id. at 10–11.
224. S. 2611, 109th Cong. § 615 (2006).
225. There are a number of recent studies on potential wage depression caused by
the presence of undocumented workers in the economy. Most studies find that immigration is, and will continue to be, vital to meet our growing economy over the next
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depression caused by the presence of foreign workers from poorer
countries who accept lower pay to obtain jobs in this country, and who
are prohibited from changing jobs.226 In order to guard against future
wage depreciation that may be caused by the influx of many hundreds
of thousands of guestworkers, it is necessary to include enhanced
wage standards in a viable guestworker program.227
H-2A program regulations require an employer to pay, at a minimum, the highest of the state or federal minimum wage, the local
“prevailing wage” for the particular job, or an “adverse effect wage
rate (AEWR).”228 AEWRs are the minimum wage rates which the
DOL has determined must be offered and paid to U.S. and foreign
workers by employers of H-2A workers.229 The AEWR was created
under the Bracero program as a protection against the depression of
wages.230 The DOL issues an AEWR for each state based on U.S.
Department of Agriculture data.231 In 2007, the lowest AEWR is
$8.01 per hour in Arkansas, Louisiana, and Mississippi, and the highest is $10.32 in Hawaii.232
The AEWR has often been criticized by farmworker advocates as
being too low to guard against wage depression.233 This is the case
fifteen years, when “baby-boomers” are retiring, but many find some negative effects
on the wages of similarly-skilled, similarly-educated workers. See, e.g., B. LINDSAY
LOWELL ET AL., IMMIGRANTS AND LABOR FORCE TRENDS: THE FUTURE, PAST, AND
PRESENT (2006), available at http://www.migrationpolicy.org/ITFIAF/TF17_Lowell.
pdf. It is difficult to isolate the effects of immigration versus other effects on wages
and job availability: During the 1990–2004 period of high immigration levels, among
the 90% of native-born workers with at least a high-school diploma, wage increases
ranged from 6.5% to 21.5%, depending on education. While wages of some unskilled
workers declined, it is not clear how much of that decline was due to other forces
beyond immigration (such as trade). Giovanni Peri, Rethinking the Effects of Immigration on Wages: New Data and Analysis from 1990-2004, IMMIGRATION POLICY IN
FOCUS, Oct. 2006, at 5.
226. See, e.g., Evaluating a Temporary Guest Worker Proposal: Hearing Before the
Subcomm. on Immigration and Border Sec. of the S. Comm. on the Judiciary, 108th
Cong. (2004) (statement of Vernon Briggs, Professor of Industrial Relations, Cornell
Univ.); WILLIAM G. WHITTAKER, CRS REPORT FOR CONGRESS ORDER CODE
RS21015, THE ADVERSE EFFECT WAGE RATE 2 (2005).
227. 20 C.F.R. § 655.102(b)(9) (2006).
228. S. POVERTY LAW CTR., supra note 114, at 21. See also 20 CFR § 655.107
(2003).
229. U.S. DEP’T OF LABOR, ADVERSE EFFECT WAGE RATES 2007, http://www.foreignlaborcert.doleta.gov/adverse.cfm.
230. S. POVERTY LAW CTR., supra note 114, at 21.
231. See 20 C.F.R. § 655.107(a) (2003).
232. U.S. DEP’T OF LABOR, supra note 229.
233. See, e.g., BRUCE GOLDSTEIN, GUESTWORKER POLICY: H-2A PROGRAM ADVERSE EFFECT WAGE RATES ARE TOO LOW (2006), http://www.fwjustice.org/Immigration_Labor/H2abDocs/AEWRTooLow.doc.
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for several reasons. First, while AEWRs are typically a higher wage
than either minimum or prevailing wages, they have in effect become
a “maximum” wage for workers.234 Under the H-2A system, if domestic workers are not willing to accept the rate that the employer
offers, then the employer may employ foreign workers who, given the
disparity in wage rates between the United States and their home
countries, will almost always be available at the AEWR.235 Since
under the regulations, the employer must only offer the AEWR to U.S.
workers, any U.S. worker who would like to work for an employer but
be paid more than the AEWR may be deemed “unavailable” for work,
and thus rejected in favor of guestworkers. In addition, the present
AEWR system allows for manipulation by employers who pay by
piece rate. It allows employers to pay a piece rate of a particular
amount per bin of apples, for example, but require superhuman quantity and quality standards in order for workers to be considered qualified for jobs.236 These shortcomings, as well as the shortcomings of
the agency administering it,237 should be considered as Congress devises a properly calculated adverse effect wage rate to guard against
wage depression.
The AgJobs compromise that was part of S. 2611 as passed by
the Senate in the 109th Congress included a provision that the employer agree to pay the adverse effect wage rate.238 The AEWR was
subjected to additional research on its effectiveness in preventing
wage depression.239 The AEWR should be a continued feature of the
H-2A program and an additional feature of the H-2B program.
3. Wages and Working Conditions That Avoid Depression
In the current H-2A program, putative employers of guestworkers
must offer the same benefits and job requirements to both United
States and foreign workers.240 These include free housing, tools and
supplies, transportation to work and reimbursement for transportation
expenses home after the contract is completed, a guarantee of work for
three-quarters of the total period that is included in the job offer, and
234. See WHITTAKER, supra note 224, at 4.
235. Id.
236. See GOLDSTEIN, supra note 233.
237. In 2002, the DOL was successfully sued for its failure to issue the H-2A program wage rates in a timely manner. See United Farm Workers of Am., AFL-CIO v.
Chao, 227 F. Supp. 2d 102, 103–04 (D.D.C. 2002).
238. S. 2611, 109th Cong. § 615 (2006).
239. S. 2611 § 615, containing § 218E(b)(3)(G).
240. 20 C.F.R. § 655.102 (2003).
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the making of certain assurances including that the workers are not
being hired as strikebreakers in a labor dispute.241
In the proposed H-2C program in S. 2611, an employer would
have been obligated only to agree that working conditions in the H-2C
job are “standard” in the industry, that workers’ compensation would
be provided, that no displacement of U.S. workers occurred in the hiring of this particular worker, and that it would pay either actual wages
of other workers or prevailing wage.242 A Temporary Worker Task
Force was to study the impact on wages and working conditions of the
new guestworker program.243
In the AgJobs proposal included in S. 2611, again owing to its
genesis in the H-2A program, a number of additional guarantees were
included, nearly identical to the current program.244 These should be
retained in the H-2A program and added to the current H-2B program.
4. Not Only Standards, but Enforcement
Experience on enforcement of labor standards has shown that
workers are best able to enforce their rights when they have two complementary means of enforcement: access to an active enforcement
agency and to their own private right of action. When budgetary
shortfalls or lack of will prevent agencies from protecting workers, a
private right of action means that individuals may raise challenges using private litigation. But if private litigation is the only route, lack of
access to lawyers prevents many low-wage workers from enforcing
their own rights.245
Senate Bill 2611 contained some important steps towards this
dual enforcement, but it did not go far enough. The new H-2C program would have included the annual hiring of 2,000 additional investigators at the DOL, but their work was to be confined to the
enforcement of the title of the bill dealing with the H-2C program.246
No private right of action was granted to H-2C workers to enforce
241. 20 C.F.R. §§ 655.202(a), (b)(1), (b)(5), (b)(6), 655.203(a) (2006).
242. S. 2611 § 404, containing § 218B(c).
243. S. 2611 § 408.
244. These included housing, transportation, wage protections, a guarantee of employment, and safety standards. S. 2611 § 615, containing §§ 218E(b)(1), (2),
(3)(G)–(H), (4), (5).
245. In the current H-2B program, the DOL takes the position that it has no authority
to enforce the H-2B contract on behalf of H-2B workers, since violations are not
necessarily violations of FLSA or other federal laws that it enforces. Thus H-2B
workers must rely solely on their own private right of action to enforce their rights. S.
POVERTY LAW CTR., supra note 114, at 8.
246. S. 2611, 109th Cong. § 412 (2006).
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their own contracts, and, except for guestworkers employed in forestry, no additional access to free legal services was part of the bill.247
The AgJobs program allowed for a private right to sue for certain
violations of the agricultural worker’s contract.248 These are: housing
violations, discrimination, payment when due, transportation, motor
vehicle safety, and failure to provide promised terms, conditions, and
benefits of employment.249 When Congress takes a look at immigration reform in the new session, it should include full public and private
enforcement, as well as additional personnel power.
5. Regulate Mega-Contractors and the Entities That Use Them
As noted above, subcontracting of workplace responsibilities and
classifying workers as “independent contractors” are large and growing problems within the United States.250 The H-2A and H-2B programs have engendered an industry of international labor recruiters
who profit from selling the right to work in the United States.251
These recruiters must be regulated, but experience has shown that they
cannot be adequately regulated without placing responsibility on the
employers who use them. Recruiters should be licensed, bonded, and
required to make written disclosures of terms and conditions of employment, and transportation and “recruitment” fees should be
abolished.252
247. As noted, under S. 2611, H-2B forestry workers would have been eligible for
representation by federally-funded legal services programs. S. 2611 § 774.
248. S. 2611 § 615, containing § 218G(b).
249. Id.
250. See discussion supra Part II.A.
251. See discussion supra Part III.B.1–2.
252. Some of these provisions are in the pending Senate bill, S. 2611, 109th Cong.
§ 404 (2006), containing § 218B(h) (explaining that recruiter must be licensed, that
the DOL may require a bond, that recruiter must disclose terms and conditions of
employment in workers’ language, that retaliation is prohibited, and that false and
misleading information is prohibited; but there is no private right of action, and fees
charged for transportation must be “reasonable”). House Bill 2298, sponsored by
Congressman George Miller, also attempted to address this question. That bill similarly required disclosures in the workers’ language, prohibited false and misleading
information and on recruitment fees, required payment of transportation costs by the
employer, and contained prohibitions on retaliation. While that bill more clearly addressed the employer’s responsibilities, it did not include a registration or bonding
mechanism. See H.R. 2298, 109th Cong. § 2 (2006). Some recruitment fee practices
are already outlawed in at least two of the source countries for guestworkers in the
U.S. See Ley Federal de Trabajo [L.F.T.] [Labor Law], Art. 28 (Mex.) and Decree
No. 14-41, Art. 34 (Guat.). The 11th Circuit has ruled that visa fees and travel costs
must be repaid by employers at the beginning of employment to the extent that they
reduce wages below the minimum wage. Arriaga v. Fla. Pac. Farms, L.L.C., 305 F.3d
1228, 1232 (11th Cir. 2002). The Arriaga decision did not find U.S. employers liable
for recruitment or “referral” fees. Id.
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The proposed guestworker program in S. 2611 contained some
regulation of international labor contractors and those who employ
them. First, the bill provided that a guestworker could not be treated
as an independent contractor.253 Since it also referred to the definition
of “employ” used in the FLSA, it allowed for a person to claim that a
worker is jointly employed by the contractor and an on-site employer.254 However, since the section contained no private right of
action, H-2C workers could only bring suit directly for a violation of
minimum wage and overtime laws, rather than any higher wage promised them or required under the law. Such a provision would likely
not significantly increase these workers’ access to the legal system to
enforce their rights.
The same section prohibited the provision of false and misleading
information, the violation of terms and conditions of employment, and
provided that written disclosure of terms and conditions of employment be provided to workers.255 It also required labor recruiters to be
licensed.256 The provision could be greatly enhanced by a complete
private right of action, wage bonding, and outlawing of transportation
fees.
6. Portability
One of the primary problems with guestworker systems is that a
guestworker’s job AND his or her ability to remain in the country
depend on remaining in the good graces of the employer. This is a
situation made for employers who would take advantage of workers.
Along with beefed up enforcement of wage and hour laws, workers
must have the ability to change jobs in order to equalize bargaining
power. New immigration legislation should allow for easy portability
of visas.257
7. Family Unity
Some principles make sense as a matter of law. Others make
sense as a matter of economics. Two additional principles make sense
253. S. 2611 § 404, containing § 218B(f)(1).
254. S. 2611 § 403, containing § 218A(n)(4); 29 U.S.C. § 203(g) (2000).
255. S. 2611 § 404, containing § 218B(h)(2)–(5).
256. S. 2611 § 404, containing § 218B(h)(7)(B)(i).
257. In the H-2C program, workers would have been allowed to move to a different
employer, as long as that employer followed recruitment procedures and the worker
did not work without employment authorization. In the AgJobs program, victims of
discrimination could ask the DOL to locate other employment within the term of their
authorized stay, but the visas are otherwise not portable. See S. 2611 § 403, containing § 218A(j) (incorporating a provision for “portability” of H-2C visas).
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as a matter of human rights and human dignity. An observer of the
German guestworker programs once said, “[w]e wanted guestworkers,
but they brought us human beings.”258 In recognition that
guestworkers are people with families, they should be allowed to bring
their families with them as they come to the United States, and to
travel in and out of the country. In addition, while some guestworkers
would prefer to return home after their term of work in the United
States is over, many others certainly put down roots and wish to stay.
Guestworkers should be provided a path to citizenship in exchange for
their help in building our economy.
The negotiators of the Senate bill in 2006 understood this question, and the guestworker programs allowed the worker’s spouse and
minor children to enter the country as well.259 The pathway to legalization for guestworkers in the Senate bill was not particularly strong.
Under it, an employer could apply for permanent status for a worker
after one year in the program, but a worker could apply only after four
years working within the United States and with the help of an employer, who was required to attest that it would employ the worker,
and the DOL, which was required to certify that there were not sufficient U.S. workers to perform the job in question.260 Further consideration should be given to a self-petitioning process for those who are
helping to build our country and our economy.
V.
CONCLUSION
Low-wage jobs in the United States are bad and getting worse.
Years of unregulated employer schemes and government neglect have
made basic wage and hour laws outdated, shrunk the pool of workers
entitled to coverage, and made the very term “enforcement” nearly
meaningless.
At the same time, immigrant workers who share the same workplaces and wages and working conditions with U.S. workers have
been held up as scapegoats, and among the most-discussed ideas for
fixing our nation’s broken immigration system have been sealing the
borders and relying on a failed system of employer sanctions and an
inhumane guestworker program to take care of future labor needs.
258. FARMWORKER JUSTICE FUND, THE BASICS ABOUT GUESTWORKER PROGRAMS,
http://www.fwjustice.org/Immigration_Labor/GuestworkerBASICS.htm (last visited
Apr. 6, 2007).
259. S. 2611 § 403, containing § 218A(m).
260. S. 2611 § 408(h).
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Our nation has never had the political will to enforce employer
sanctions laws, and they have turned in to a reliable way for unscrupulous employers to retaliate against workers who dare to complain.
Guestworker programs have proved unworkable for upholding the labor standards of both U.S. and foreign workers.
We can do better with a new system of “employer sanctions”—
by penalizing employers who violate basic wage and hour laws, expose their workers to life-threatening workplace dangers, and brush
off their workplace responsibilities to labor intermediaries. We can
shore up the labor standards in current guestworker programs in order
to give U.S. workers a fair chance at a decent job, and decent wages
and working conditions to immigrants. We can put these immigrants
on a path to citizenship.
In a nation that prides itself on principles of fairness and equality,
we must decide to enforce labor and employment laws on an equal
basis for all workers. If we intend to have a meaningful immigration
policy, we must have a meaningful labor policy. It is hoped that the
policies outlined here can guide Congress in its deliberations.